The Government has now responded to the recommendations of the Equality and Human Rights Commission (EHRC) on pregnancy and maternity-related discrimination and disadvantage in the workplace (the "Response").
The EHRC made its recommendations following independent research carried out on its behalf and for the Department for Business, Innovation and Skills. This research was the largest project of its kind in Great Britain: over 3,000 mothers and 3,000 employers took part. 77% (or three in four) of mothers said they had a "negative or possibly discriminatory" experience at work during pregnancy, maternity leave and/or on return from maternity leave. If scaled up, this equates to 390,000 mothers a year. Only 28% of those went on to raise this issue with their employer (either formally or informally) and a mere 1% of mothers lodged a complaint with the Employment Tribunal.
The Response sets out the Government's stance on the six recommendations, accepting the majority of them (on "Leadership for change", "Improving employer practice", "Improving access to information and advice", "Improving health and safety" and "Monitoring progress"). It makes abundantly clear the Government's vision for eradicating pregnancy and maternity discrimination and the gender pay gap (for more on the gender pay gap, for which the Government promises a "£0.5m package of support" to help its measurement and reduction, see our previous blog: 'Addressing gender inequality: is 'positive action' the answer'). But while the vision is promising, the Response is arguably somewhat light on concrete promises.
Options which the Government says it will explore include: collective insurance schemes to support some employers (to spread the cost of providing enhanced maternity pay and cover for maternity leave); raising awareness of pregnant women's rights (though no further legislation is considered necessary to stop employers asking unlawful questions to women during recruitment – organisations simply "must not" do it); and raising awareness through "good practice" video case studies, online toolkits and updated MAT B1 Forms.
However, tucked away towards the end of the Response, the Government squarely rejects recommendation 5 ("Improving access to justice"), which called for "changes to the employment tribunal fee system to ensure that fees are not a barrier to accessing justice for women experiencing pregnancy and maternity discrimination". It also rejects the recommended increase to the time limit for women bringing Employment Tribunal claims, in cases involving pregnancy and maternity discrimination, "from three to six months, in line with other employment claims such as redundancy and equal pay".
The fee-change recommendation was rejected on timing grounds; the Government felt it "too soon" to be meddling in Tribunal fees given the ongoing post-implementation fee review. The reduced time limit recommendation was rejected due to a lack of evidence of a "need" to increase the time limits for women. The Government considers the current three-month time limit to be a flexible one, capable of extension (though, in practice, the Tribunals use their equitable discretion sparingly). Organisations have thus been spared (for now) changes to Tribunal fees and time limits which might have made it easier for women to bring Employment Tribunal claims against them.
The Response is, perhaps predictably, keen for further surveys and for ACAS to play a dominant role in educating the public at large (see further ACAS's equality guides, which can be found at www.acas.org.uk/pregnancydiscrim) and publishing data for further analysis on this topic.
The Response's underlying message is difficult to avoid: the Government acknowledges the problem (and is happy to say the right words), but it does not really wish to do much about it. The Government clearly expects employers to shoulder the burden of (and foot the bill for) reducing pregnancy and maternity related discrimination in their workplaces. In light of this, if you would like to discuss what steps your organisation should take to eliminate pregnancy and maternity related discrimination, please do not hesitate to contact me or a member of our Employment team.
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