Practical Law

When the Equality Act 2010 came into force, it introduced various measures to tackle gender inequality in the workplace. These included designating pregnancy and maternity as protected characteristics, widening the definition of “employee” for protection against pregnancy and maternity discrimination and gender pay reporting. The Equality Act (Gender Pay Gap Information) Regulations will make it mandatory for companies with 250 employees or more to publish an annual report on the gender pay gap within the company. They are expected to come into force in April 2017.

Despite these measures, recent research suggests that gender, pregnancy and maternity discrimination at work is still a big problem and on the rise. It is difficult to say what the precise reasons for this are. It could be that there are more women in work than ever before, that the introduction of tribunal fees has made employers less concerned about potential claims or that vulnerable groups (including pregnant women and new mothers) were hit hardest by cuts in the aftermath of the financial crisis. Research by Slater and Gordon Lawyers found that women were still being told to wear make-up, high-heels and short skirts to work. An overwhelming 90% of those surveyed felt pressured to dress “sexier” and felt that their careers would suffer if they did not comply. The survey revealed that one in ten women were given a dressing down about their appearance in front of colleagues.

Research carried out in 2015 by the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission (EHRC) showed that 11% of expectant and new mothers felt forced to leave their jobs whether as a result of being dismissed, selected for redundancy over other colleagues or being subjected to poor treatment and being forced to leave. This has significantly increased since similar research carried out by the Equal Opportunities Commission in 2005. Furthermore, more than 77% of women surveyed had experienced negative or potentially discriminatory behaviour at work because of their pregnancy or maternity.

The equality legislation is only effective if it is enforced. Challenging an employer about discriminatory behaviour is not easy. The EHRC has made recommendations to the government for tackling the problem, which included improving access to justice and removing barriers to women raising complaints.

Litigation can be costly and very stressful. Discrimination legislation is also complex and daunting for those employees who have to represent themselves. It is especially difficult for women who, after having a baby, find themselves financially vulnerable with reduced or no pay for much of their maternity leave and who also have the added demands of caring for a new baby. Many women simply are unable to afford the legal assistance they need to help them bring their case successfully before an employment tribunal. Research shows that less than 1% of women pursued their claim to an employment tribunal.

Following the EHRC/BIS research, the Women and Equalities House of Commons Select Committee launched an inquiry and made numerous recommendations to address some of these issues, including:

• More access to information, free advice and assistance.
• A substantial reduction in the £1,200 employment tribunal fees in discrimination cases.
• The extension of the limitation period for submitting a maternity discrimination claim from three months to six months.

While these changes would assist more women in enforcing their rights, they may not stop the discrimination occurring in the first place.

Most if not all employers would agree that discrimination is not good for business. Discrimination results in losing talented staff. Companies do not want the cost or the reputational damage of a discrimination judgment. Most organisations understand that a positive and respectful working environment has a positive impact on staff retention. So what needs to change? Developing a positive workplace culture and training for employees at all levels are crucial in the fight against discrimination.

Culture

Employers need to consider the messages they are sending to their employees and whether their working practices may be outdated and potentially discriminatory. For example, if the employer fosters a culture of working late and long hours to meet targets or working traditional office hours with no flexible working then those employees who have childcare commitments (who are, in the main, women) are most likely to be adversely impacted.

Employers should also consider whether women are being pushed out of their roles (or not being recruited) because their employer’s written or unwritten dress code discriminates against them on the grounds of their gender or religious belief.

Training

Policies are only as good as the managers implementing them. Many managers and employees may not understand that their actions amount to discrimination, especially where their actions are supported by the overall working culture and environment of the business. For example, the BIS/EHRC research revealed that 77% of women surveyed felt they had suffered discrimination because of their pregnancy or maternity. However 89% of the employers surveyed said that it was easy to protect employees from discrimination because of pregnancy and maternity. This demonstrates a clear disconnect between the experiences of employees and the perceptions of employers.

We may never bring discrimination in the workplace to a complete end, but with a genuine commitment to training and change in businesses, it can be reduced and litigation may become a last resort.