Statistics from the Equality and Human Rights Commission, published in February, have revealed that many British employers are ‘living in the dark ages’ and have worrying attitudes towards unlawful behaviour when it comes to recruiting women.
Among other concerning statistics, the survey of 1,106 senior decision-makers in business found that around a third (36 per cent) of private sector employers agree that it is reasonable to ask women about their plans to have children during recruitment, and that more than half of employers (59 per cent) believe that a woman should have to disclose whether she is pregnant during the hiring process.
This follows figures published last year by the Department for Business, Energy and Industrial Strategy that revealed one in nine mothers (11 per cent) were either dismissed, made compulsorily redundant where others in the workplace were not, or treated so poorly that they felt they had to leave their job.
The statistics raise significant concerns about workplace culture and gender equality, which are only compounded by most gender pay gap reports published to date, which show that the vast majority (more than 80 per cent of the reports published as at February 2018) of employers have a gender pay gap.
In addition, on 22 February 2018, the European Court of Justice (ECJ) ruled that, in certain circumstances, it is legally possible to dismiss pregnant workers for reasons unrelated to the individual – in this case on the grounds of a collective redundancy, despite the general protections afforded to pregnant workers under European law (Porras Guisado v Bankia SA).
Tips for employers
So what protections are available and what can an employer ask or do in relation to pregnant employees?
UK law does, in fact, provide protections for pregnant employees and those on maternity leave. A potential employer is not permitted to treat a prospective employee who is pregnant less favourably. Such treatment may amount to pregnancy, sex or maternity discrimination under the Equality Act 2010. Most legal advisers would tell employers that asking prospective female employees about their plans to have children is not recommended and, indeed, increases the chances that they may face allegations of discrimination if that candidate is not ultimately appointed to the job.
It is also the case that the dismissal of a female employee who is pregnant or on maternity leave will, inescapably, raise additional risks in review of the protections afforded by the Equality Act and related UK regulations. The Equality Act expressly prohibits pregnancy and maternity-related discrimination from the beginning of pregnancy until the end of the maternity leave period, as well as both direct and indirect sex discrimination.
It is also automatically unfair to dismiss a woman or select her for redundancy on the grounds of her sex or for a reason connected to the pregnancy or maternity leave. The ECJ decision therefore simply reflects that, as long as it can be established that the reason for the dismissal is unconnected with the pregnancy (ie, that it is a collective redundancy and the employee was not selected for redundancy as a result of her pregnancy), the woman cannot rely on the protection of the Pregnant Workers Directive.
Employers should also bear in mind that regulations in the UK also afford pregnant employees preferential treatment in the event that alternative employment is available in the context of a redundancy exercise.
With the abolition of employment tribunal fees and the recent events following the Weinstein scandal, it may be that the momentum exists that leads to an environment heralding a change in attitudes and culture, as well as increasing the likelihood that employers will receive more complaints relating to inequitable and unfair treatment of female employees and prospective employees.
Lauren Pullen-Stanley is a senior associate at Norton Rose Fulbright