Despite extended maternity leave regulations due in April, latest research shows that women of child-bearing age still face widespread discrimination when it comes to recruitment. Helen Badger, employment law expert at Browne Jacobson, outlines the legal burdens and potential sanctions imposed on employers by maternity legislation.
On the 30th anniversary of the Sex Discrimination Act, which came into force in 1975, research from the Recruitment & Employment Confederation (REC) revealed the extent to which some employers still actively discriminate against pregnant women and women of child-bearing age.
The REC study claimed that as many as 75% of recruitment agencies are aware of pressure from businesses to “blacklist” younger women. Over 10% felt that pressure from clients directly prevented them from putting forward pregnant candidates or those of an age likely to have children. And the practice would appear to be on the increase: more than a fifth of recruiters said that more clients were asking them to break the law by avoiding young female candidates who may be looking to start a family.
The current climate
Whilst lawbreaking and discriminatory practices cannot of course be condoned, employers do claim to genuinely struggle with maternity regulations such as they are. And with the Working Families Bill due to come into force in 2006, firms are fearful of increasingly tough legal measures aimed at protecting women’s working rights.
With this in mind, it is worth a look at the requirements maternity law makes of businesses. As well as a duty to provide 26 weeks’ paid maternity leave, plus a further 26 weeks unpaid, current legislation places the following obligations on employers:
- Health and safety: an expectant mother’s job must be risk assessed. If her role is found to present a risk to her health, she must be offered a suitable alternative role, or else suspended on full pay.
- Ante-natal arrangements: pregnant women are entitled to time off for ante-natal appointments.
- Timing of return: legislation forbids employers from asking if and when an employee will return from maternity leave (though this is likely to change under the forthcoming Bill). Businesses are left to assume that the employee will take a full year off and manage workloads accordingly. This can cause complications if a temporary employee is offered a contract for a full year, and the full-time employee wishes to return early – which she is legally entitled to do.
- Equality of terms and conditions: following maternity leave, mothers have the right to return to their former job on equal terms and conditions to those on which they ‘left’. However, if leave in excess of 26 weeks is taken and it is not practicable for the employee to return to her former position, then the obligation is to find an appropriate alternative position for the returning employee. In the event that an employees position becomes redundant during a period of maternity leave, the law places her in a privileged position, whereby she must be offered a suitable alternative vacancy, whether or not she is the best person for the job.
- Accrual of annual leave: holiday still accrues while staff are on maternity leave. Over a maternity period of one year, a woman will accrue at least the statutory minimum of four weeks’ leave. This effectively adds to the maternity leave period, a further resource burden to a business.
- Bonuses: staff on maternity leave are entitled to equal treatment where bonuses are concerned, which can be very difficult to manage – for example, what to do where bonuses are performance-related, and the person has not been at work to ‘perform’?
To further complicate matters for employers, and intensify the pressure on them, new measures under the Work and Families Bill, to be introduced in April 2006, will extend maternity leave, yet may prove of further detriment to women as companies grapple with financial and operational costs of a longer maternity absence.
The Bill proposes a significant increase in paid maternity leave, to 39 weeks, which the government envisages eventually extending to a year.
Employers will not only have to continue paying employees during the extended maternity period, but will also have to fund temporary replacements for a longer period.
These are burdens particularly felt by small or start-up businesses and charities, which often lack the resources to support staff through pregnancy and arrange replacement cover.
The result of all of this, rightly or wrongly (indeed wrongly, according to the law), would appear to be a reluctance to recruit women of child-bearing age, at least according to the REC’s findings, and a possible temptation to avoid doing so altogether and “dress up” reasons for this.
This is not necessarily to be advised, however. Aside from the ethical considerations of discriminating against women of child-bearing age (or any group for that matter), employers could be faced with grave consequences if they choose to neglect womens working rights in order to avoid maternity costs.
Unlike in unfair dismissal cases, there is no cap on the amount of damages an employee can be awarded in a discrimination claim. In addition to compensation awarded for loss of earnings suffered by an employee who loses their job or is not recruited, a successful claimant may also be awarded damages for injury to feelings suffered.
The average award for sex discrimination claims in the UK last year was a significant £14,158, but many awards were in excess of this figure.
So for companies, the burdens may be troublesome, but the law is black and white, and the consequences of not complying cost. Yet for women of an age where they are likely to become pregnant, the reality in the workplace often remains a world apart from the laudable aims of equal opportunities legislation.