Don’t take mother in law lightly

Travers Smith discrimination case shows why employers will continue to lose talented new mums

Harriet Botwell
Harriet Bowtell, principal lawyer (partner), employment, Slater&Gordon

Katie Tantum’s successful claim for pregnancy discrimination against Travers Smith is a strange case.  It does not concern a particularly novel point of law; it is a first-instance Employment Tribunal decision. Despite this, the story has brought the issue of maternity discrimination back into the public conscience. After all, when was the last time you read about a pregnancy or maternity discrimination case in the red tops or even the broadsheets?

Tantum was a trainee at Travers who became pregnant towards the end of her training contract. She was not offered a permanent position and claimed unfair dismissal and pregnancy discrimination.

The tribunal issued its decision on 17th May, finding in Tantum’s favour.

Most, if not all, employment lawyers will see huge numbers of clients with similar tales to tell to Tantum’s. You might, therefore, think it surprising that we don’t see a similarly huge number of cases coming up at the tribunal. However, there are many reasons for this. 

It will come as no surprise to learn that many mothers who return from maternity leave suffer either changes to their job or return to find no job at all so, taken in context, the courage that Tantum displayed in not only taking on a large City law firm but also seeing the process through to the end – and all at a time when she had only recently given birth – is commendable. 

The case also puts into context the rarity of an employer not settling this type of claim. Most claims that are issued are settled confidentially, and long before they get anywhere near a public hearing.

On the Tantum ruling Travers commented: “We really did not expect this decision at all. We are very surprised and disappointed by it.” 

It is not uncommon for employers to think that they have done nothing wrong. And perhaps that in itself is a more accurate reflection of the general workplace culture relating to pregnancy and maternity leave than anything else. 

Furthermore, the lack of awareness with regard to unlawful conduct when it comes to making women redundant either while on maternity leave or on their return to work is worrying. 

Employers often seem to adopt the old mantra ‘out of sight, out of mind’ and experience shows that these cases often only surface when a returning employee walks back into the office only to find their familiar desk has a new occupant at the helm. 

All too often employers naively seem to think that because the woman’s work has been covered while she has been away, she is the one who is dispensable and will therefore lose her job.  This is, of course, the precise risk to new mothers that the law is designed to protect.  

In many cases, employers have unfounded fears about what they can expect from women when they return from maternity leave – will they operate a blanket refusal to deal with flexible working requests? Will they consider alternative ways of working?

Sadly, until we see a real cultural shift, employers are likely to continue to lose talented new mothers.