Hard labour

Will the EOC investigation into discrimination against pregnant women help those most in need, or will it just add to the legal minefield? Jessica Learmond-Criqui reports

The Equal Opportunities Commission (EOC) on 1 September 2003 launched the first-ever formal nationwide investigation into discrimination faced by pregnant women at work in the UK. The investigation will run until February 2005, after which the EOC will make formal recommendations to the Secretary of State to deal with any such discrimination.

This investigation follows the invitation of Patricia Hewitt to the EOC in May this year and comes hard on the heels of a record number of complaints being made to the EOC helpline by pregnant women across all industries. In particular, some small-scale research in 2002 by the EOC revealed that: Pregnant women experience problems at work across many industries and occupations, with complaints coming from solicitors, dental nurses, nursery nurses and shop assistants in full and part-time jobs, with both small and large employers.

The range of unfair treatment some pregnant women have experienced includes dismissal, lack of promotion, change of salary terms, unfounded criticism, downgraded appraisals, non-payment of bonus, changes of shift hours and disciplinary action about performance.

Many pregnant women who leave the workplace struggle to return to their pre-maternity employment status.

This has been backed up by a recent survey conducted by baby charity Tommy’s during National Pregnancy Week in August 2003 to determine attitudes to pregnant women at work. More than 1,200 people were involved, with 21 per cent of that figure saying they knew someone who had experienced problems at work because of their pregnancy. That figure rose to 33 per cent among women aged between 25 and 34. Experiences included facing unpleasant remarks or unfounded criticism, being given unsuitable work, or even being sacked.

The EOC investigation will be conducted in four parts: The extent of the problem, ie how many women are affected.

The impact on their lives, their families and their future careers.

The concerns of some employers in managing pregnancy at work and why some employers may fail to treat pregnant women fairly.

The changes that need to happen, what can be done to make a pregnancy a positive experience in the workplace rather than a cause of guilt or unfair treatment.

Recommendations will be made by the EOC to the Department of Trade and Industry (DTI) following the 18-month review.

Although investigation is welcomed, there is a concern that if as a result of the review more legislation is recommended, this may have an adverse impact on the very women who need help.

There are two reasons for this concern. First, those employers inclined to be errant will be driven towards further and more blatant instances of discrimination, perhaps in recruitment practices, to avoid recruiting women of childbearing age. This is because there is a cost to industry of supporting pregnant workers and, in the current economic climate where some employers are struggling for survival, it is inevitable that they will be looking for ways to reduce their costs.

And second, although the law is very helpful and creates rights, these must be litigated, which takes time and offers no guarantee of success. Such rights must then be litigated at the most vulnerable time for a woman when she should try to avoid stress to avoid harm to her unborn child, otherwise she may well lose her rights.

Although it is helpful to provide more safeguards for women, it is nevertheless providing more complex legal rights to the most vulnerable who may not use such tools due to their particular physical, mental and impending financial condition. Unless an employee has the backing of the EOC or her trade union, so that she is not exposed to meeting her own legal costs, many employees may well back off from taking the first crucial step to enforcing their rights.

It may be possible that mere refinements to the current system may be all that is required in order to protect women, without adding new legislation and more complexity to an already complex system, such as: Extending the period for bringing claims to three months after a woman returns to work following maternity leave, or three months after the end of her ordinary maternity leave, by reference to an act which may have taken place before she went on leave.

Imposing the little-used arbitration procedures on pregnancy cases. This has the advantage of speed, a more informal approach than a tribunal and a pragmatic, non-legalistic approach, which is often what is needed in this type of situation.

But all of that is for the future, and the best way forward will ultimately be for the EOC and the Secretary of State to decide. In the meantime, what should HR professionals be doing to ensure that their employers are in the best possible position whatever the outcome of the EOC investigation and recommendations to the Secretary of State?

Check that employment handbooks and any maternity policies are up-to-date with all the new maternity and flexible working rules introduced recently.

If all is in order, inform the head of compliance or the chief executive officer of the existence of the EOC investigation and the range of liabilities that employers have suffered for transgressions; then obtain their buy-in for support for training sessions for managers and other workers who may make comments or act in an unlawful way towards pregnant workers.

Provide training sessions for managers and other staff.

Work with managers who wish to get rid of pregnant workers to ensure they have legal reasons to do so and are not simply acting on a whim.

By doing these things, HR officers would be minimising potential liability to their employers, which has been evidenced in a raft of recent cases. These include the case of solicitor Harriet Davies-Taheri, who was awarded £30,000 for sex discrimination against employer Proddow Mackay, and Carol Bonehill, who won £9,000 for unfair dismissal and sex discrimination against employer PH Adams (Electrical Contractors).

There are many other such cases that may have been settled out of court, including that of Jane Hayton in relation to her employer, bowling firm AMF. This investigation is a groundbreaking development in the role of the EOC and a superb opportunity to make recommendations of imaginative and innovative mechanisms that are perhaps more effective than the current extensive laws.

Those employers that already abide by the existing rules should have nothing to fear from any developments arising from such recommendations, and they should give women the peace of mind to know that they will be treated fairly and humanely should they fall pregnant.

Jessica Learmond-Criqui is a consultant with London law firm Collins Benson Goldhill