Throughout 2018-19, there were a flurry of employment law initiatives aimed at protecting women’s rights in the workplace.  Legislation restricting the use of non-disclosure agreements, enhancing protection against redundancy for pregnant women and new mothers, and a consultation on ending workplace sexual harassment were all live issues.  With Brexit and the Covid-19 pandemic, these issues seem to have taken a back seat. 

Now, as the pandemic begins to recede, Maternity Action, together with several other parents’ rights groups, have put together an Action Plan calling on the Government to urgently implement policies to end pregnancy and maternity discrimination at work.  Their proposals could pave the way for change.

Reform of shared parental leave

A “deeply flawed and chronically failing policy” is how Maternity Action describes Shared Parental Leave.  With take up of SPL remaining low, at around 3-4% of eligible fathers, Maternity Action proposes that SPL should be replaced with an entirely new system of statutory maternity and paternity leave.  A key feature of any new regime should be a better rate of pay.  Beyond that, Maternity Action propose that each parent should have an individual and non-transferrable entitlement to leave which is available from day one of employment and which is available to all working parents, regardless of employment status.

Enhanced protection against redundancy for pregnant women and new mothers

The Government has promised legislation which would extend the existing protection against redundancy for pregnant women and women on maternity leave so that it applies from the date of written notification of pregnancy to six months after return to work.  The campaign calls for greatly enhanced protection for pregnant women and new mothers making it unlawful for an employer to make a pregnant woman or new mother redundant, save for in very limited circumstances, such as workplace closure.  This legal framework was set out in a Private Members' Bill’ introduced to Parliament by Maria Miller MP in 2019.

Improve access to flexible working

One of the commitments made in the 2019 Conservative Party Manifesto was to consult on introducing a "flexible by default" approach to job advertising and recruitment. Under such a policy, all jobs would be advertised as being flexible working roles, save where an employer was able to identify a good reason why the role could not be performed flexibly.  The Government has reiterated its commitment to flexible working on a number of occasions.  

The experience of many employers over the last 12 months shows that remote working, at the very least, can be successful.  As many employers begin to contemplate what working arrangements might look like after the pandemic, now would be an ideal time for the Government to progress its proposals.  Maternity Action support the “flexible by default” approach to job advertising but say that the grounds for rejecting flexible working requests should be reviewed and redrafted in a more specific and limited way.  

Gender pay gap reporting

Gender pay gap reporting has been undermined over the last two years.  In 2020, enforcement of the deadline for reporting was suspended, leading to significantly lower rates of reporting that year (around 45% of employers did not report).  In February 2021, a six-month extension was granted for the 2021 reporting deadline.  

Reports filed in 2021 and 2022 risk being misleading, since employees who are furloughed on the snapshot date will be excluded from statistics.  Maternity Action’s campaign calls for an extension to mandatory reporting requirements. It proposes that reporting should be extended to cover the ethnicity and disability pay gaps, the gender breakdown of redundancies and the retention rate of women during pregnancy, maternity leave and after return. It also calls for mandatory action plans to be introduced setting out steps to advance equality.

Improved access to employment tribunal

The employment tribunal claims backlog continues to grow.  According to Maternity Action it has increased by 160% since 2017.  In part, this is due to an increase in claims following the abolition of tribunal fees but it has been significantly exacerbated by the difficulties in holding hearings during the pandemic, as well as under-funding. Long delays raise questions about whether effective access to justice is available.  The campaign calls for a fully-funded recovery plan to be put in place.  It also supports proposals made by the Law Commission that the time limit for bringing all employment tribunal claims be extended to six months.