The Equality and Human Rights Commission (EHRC) released shock statistics this week which suggest that more than a third of private sector employers in the UK believe that it is acceptable to ask female candidates during the recruitment process about their future plans to have children.
The survey was carried out by YouGov last Autumn and concentrated on a poll of 1,106 senior business decision makers’ attitudes towards pregnancy and maternity discrimination.
Out of this sample, 59% said that they agreed that female candidates who are interviewed should disclose if they are pregnant and 46% said that they believed that it was reasonable to ask a woman if she had small children.
The survey also disclosed that 44% of employers believed that women should work for their employer for at least a year before deciding to have children, and that women who had more than one pregnancy whilst in the same job could be a burden to their team.
This is notwithstanding the fact that this practice has been illegal since the introduction of the Sex Discrimination Act back in 1975.
The chief Executive of the EHRC branded the findings ‘ depressing’ and accused many employers of ‘living in the dark ages’. She went on to say ‘We should all know very well that it is against the law not to appoint a woman because she is pregnant or might become pregnant. Yet we know women routinely get asked questions around family planning in interviews. It’s clear that many employers need more support to better understand the basics of discrimination law and the rights of pregnant and new mothers’.
The view of many employers is that pregnant women take advantage of their pregnant status and that new mothers are less interested in career progression compared with other employees. There is also the view that some parts of the workforce are resentful towards women who are pregnant or who are on maternity leave especially where they are expected to cover their roles.
As a consequence of these shocking statistics the EHRC has launched a new campaign called ‘Working Forward’ aimed at raising awareness and improving the workplace for pregnant employees and new parents. It is urging employers to sign up and to pledge to treat these employees fairly.
It has to be re-iterated that it is unlawful to ask female employees questions during the interview process and during the course of their employment as to whether they intend to have children in the future or if they have small children.
It is also unlawful to both dismiss a female employee or to refuse to recruit for a reason relating to her pregnancy and maternity . Any pregnancy and/or maternity related dismissal could lead to claims for direct sex discrimination where there is no financial cap on the amount that an employment tribunal is empowered to award and could also result in a finding of automatic unfair dismissal where the employee does not require the usual two-year qualifying period.
Employers should also be aware that any decisions taken to dismiss a pregnant employee or one that is on maternity leave is likely to affect their entitlement to maternity pay and the statutory right to return to the same job and also their rights to shared maternity leave. This in turn can also have a detrimental effect on the pregnant employee’s future family finances.
If the cost of maternity leave is an issue particularly for small businesses then they can reclaim most, if not all the statutory maternity pay from HMRC. Larger businesses can reclaim 92% of the payments.
If you are a small business, and have paid less than £45,000 in Class 1 National Insurance contributions for your employee(s) in the last complete tax year, then you qualify for small employer’s relief, and can reclaim 103% of the costs.
Above all it is imperative that employers seek timely legal advice before taking any drastic steps that they are considering in either terminating the employment of a pregnant employee or one who is on maternity leave. This is also the position if there are concerns about what can and cannot be asked during the recruitment process.
Contact Head of Employment Law, Steven Eckett at Meaby&Co for timely advice: email@example.com or call 0207 703 5034.
Meaby&Co is authorised and regulated by the Solicitor’s Regulation Authority (SRA Number 447880) and registered in England and Wales with registered number OC322672 at 2 Camberwell Church St, London, SE5 8QY.