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Equality : Pregnancy and Maternity Discrimination

Posted in Employment on 15th November 2017

Equality : Pregnancy and Maternity Discrimination

According to a UK Government report, 77% of mothers surveyed had a negative or possibly discriminatory experience during pregnancy, maternity leave and/or on return from maternity leave. Equality : Pregnancy and Maternity Discrimination

11% had felt forced to leave their job. This figure included those that had been dismissed, those made compulsorily redundant and those feeling treated so poorly that they felt they had to leave their job. 

The report (Pregnancy and Maternity-Related Discrimination and Disadvantage: Summary of key findings, Department for Business, Innovation and Skills, BIS/16/145), published in March 2016, is the second of two reports commissioned by the former Department for Business, Innovation and Skills in conjunction with the Equality and Human Rights Commission (the “EHRC”) in light of Government concern for the continued difficulties faced by women in the workplace.

Despite the UK’s Equality Act coming into force in 2010, the report suggests that issues relating to pregnancy and maternity remain very live issues for both employers and employees. Caroline Walters, deputy chair of the EHRC commented that the report highlights the “worrying levels of discrimination and disadvantage at work that women still face”.

Prior to the Isle of Man Equality Act 2017, pregnant women or new mothers in the Isle of Man who were discriminated against could bring claims under the Employment (Sex Discrimination) Act 2000. This protection sat aside and overlapped with the other protections that are afforded to pregnant women and mothers under the Isle of Man’s Employment Act 2006 and related regulations including the right to paid time off for antenatal care, health and safety during and after pregnancy, annual leave, the right to return to work and protection against unfair dismissal.

The introduction of the Isle of Man Equality Act 2017 will bring the position in the Isle of Man largely in line with the position in the UK. Rather than pregnant women and mothers having to claim for discrimination under the more general ground of ‘sex discrimination’, pregnancy and maternity are protected characteristics in their own right under the Equality Act.

Direct pregnancy and maternity discrimination occurs if, during the protected period, in relation to a pregnancy, a person treats a woman unfavourably because she is pregnant or because of an illness suffered by her as a result of pregnancy.

A person also discriminates against a woman if they treat her unfavourably because she is on maternity leave or is seeking to exercise her rights to maternity leave.

There is no need for an employee to show that she received unfavourable treatment compared with a male colleague or a non-pregnant female employee and the pregnancy or maternity leave does not have to be the only reason for the unfavourable treatment. Furthermore, it does not matter what the employer’s motives or intentions are; it is automatically discriminatory if the unfavourable treatment is because the employee is pregnant or is related to maternity leave.

Examples of unfavourable treatment include:-

• dismissal because of pregnancy;

• redundancy on the grounds of pregnancy;

• reduction of pay, hours or type of work.

• refusal of access to promotion;

• pressure to resign; and

• refusal of time off for antenatal care.

In addition to those more common examples, employers may discriminate in less obvious ways, for example:-

• by failing to inform a pregnant employee of a client presentation that she would have attended if she had not been pregnant;

• excluding a pregnant employee from certain types of work that she otherwise would have done;

• failing to maintain communication with an employee on maternity leave;

• failing to inform an employee on maternity leave of any job vacancies or promotion opportunities;

• making inappropriate comments about pregnancy or maternity that amount to harassment;

• asking a woman about her family plans in a job interview;

• refusing to deal properly with a new mother’s request for flexible working; and

• failing to provide adequate breaks and facilities for breastfeeding on the employee’s return to work.

The UK Government’s findings in its report suggest that, despite the protections afforded by the Equality Act, significant further work is needed to ensure that women do not continue to be disadvantaged in the workplace as a result of their decision to have children.

Notwithstanding this, the Government’s report suggests that employers do recognise the value of supporting pregnant women and new mothers. 84% of the employers surveyed believed that it was in their interests to support women who are either pregnant or on maternity leave and that pregnant woman and mothers are as committed as other employees.

These findings from the UK are informative in light of the introduction of the Isle of Man Equality Act 2017.

In order to support pregnant women and new mothers and avoid claims being brought against them, employers need to ensure that they have a full understanding of the law relating to pregnancy and maternity, that adequate training is provided to the workforce and that proper policies and procedures are in place for ensuring the necessary arrangements and adjustments are made.

If you would like to discuss the potential implications of the Equality Act 2017 for your business, or if you would like assistance in reviewing and updating your policies and procedures, please do not hesitate to contact DQ’s specialist employment team at employment@dq.im.

By Tara Cubbon
Senior Associate

Next article: DQ’s Tara Cubbon promoted to Senior Associate

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