I have never been pregnant, nor do I anticipate any change in that position. The comments which follow concerning last week’s report from the Equality and Human Rights Commission on pregnancy and maternity-related discrimination must please be seen in that light. However, I hope I have at least retained the ability to distinguish between fact and allegation, and reality and perception, both differences which appear to have escaped a number of the press pieces on the EHRC’s report at the cost of some damage to its credibility.
For example, the Guardian Online article is headed “Fifth of women harassed at work over pregnancy or flexible hours, report finds“. The EHRC’s own release at least has the grace to start “Three in four working mothers say (my emphasis) they have experienced pregnancy and maternity discrimination“. That just does not support in any way the Guardian’s piece’s earnest assertion that “Three quarters of pregnant women and new mothers experience discrimination at work“.
The EHRC report is a very worthy attempt to look at the nature and prevalence of pregnancy and maternity-related discrimination and disadvantage in the UK workplace, based on interviews with just over three thousand new mothers, and about the same number of employers. Its introduction makes it very clear that the survey findings are based on “perceptions of experiences” and that “mothers’ experiences do not necessarily fall under the legal definition of discrimination“, that traditionally being the province of the Employment Tribunal to decide rather than a journalist at the Guardian.
Against that background, what are the report’s headlines and what do they actually mean?
- First, there is that 3 in 4 proportion of mothers who told the survey that they had a “negative or possibly discriminatory experience” during pregnancy, maternity leave and/or on return from leave. Note as before, however, that life is full of disappointments, and that having a “negative experience” could be anything from overt discrimination to being told only, and with utmost courtesy, that the patently unworkable flexible working pattern you seek on your return is patently unworkable.
- Second, one in nine mothers (11%) felt “forced” to leave their job. Looked at more closely, however, only 2% were actually dismissed, actively or constructively. The other 9% felt “treated so poorly” that they preferred to leave even though not actually forced to do so. Clearly this could again cover a multitude of sins, but we are left with the irreducible fact that any mother whose childcare preferences or options are incompatible with her remaining in her post is ultimately going to have to leave it, without that necessarily pointing to any discrimination or lack of willingness on the part of the employer to do what it can to make things work.
- Indeed, the report acknowledges that 68% of new mothers submitted flexible working applications, and that of those requests, a full 75% were approved. There is nothing in the report which concludes that all or any of the remaining 25% were refused without good reason. The Guardian’s sweeping statement that one new mother in nine loses her job “as a result of discrimination at work” is simply not borne out by the EHRC report.
- 20% of mothers said they experienced “harassment or negative comments relating to pregnancy or flexible working” from their employer or colleagues. This is no doubt where the Guardian gets its headline, but it is valueless without clarity as to what counts as a “negative comment”. It is beyond reasonable argument that maternity leave and flexible working arrangements can impose significant additional burdens on others, especially in small companies, and often without any compensatory reward. Are those colleagues discriminating if their resentment finds voice in objections to a proposed flexible working application because of genuine and objective concerns about what it means for them? Or if the office chat on the employee’s return to work (perhaps understandably nervous or sensitive after a long time away) is distracted or less than wholly accommodating, interested and welcoming?
- Of those mothers whose flexible working application was accepted, 51% felt they had suffered “negative consequences” as a result. Maybe some of that is just the cracks showing in applications which could or should really have been rejected but were not, because of the employer’s efforts to help. The report does not say, and so the statistic does not really teach us anything.
- Three quarters of mothers questioned who were unsuccessful in job interviews “felt” that the employer’s knowledge of their pregnancy had affected their chances. This would clearly be deplorable if that were indeed the position, but since the alternative is their acceptance that they were simply not right for the job, any disappointed interviewee (male or female, pregnant or not) is likely to seek comfort in reliance on some separate rationale for their rejection. The report does not seek to say that this perception is based on fact in all or any of those cases.
- Overall, therefore, the report shows very little clear and objective sign that discrimination in the legal sense is a significant problem for most new mothers. Nonetheless, the EHRC Deputy Chair’s commentary is that this is all “hidden discrimination“, “unacceptable in modern Britain” and that “urgent action is required to ensure women are able to challenge discrimination and unfairness“.
- This latter point may come as a surprise to those employers who thought that new mothers already had at least the same rights to raise grievances and Tribunal claims as other employees. This call to arms is also fatally undermined by the disclosure that of that 75% of women who felt disadvantaged (in its broadest sense) by reason of pregnancy or maternity, only a quarter even raised it with their employer at all, only 3% raised it as a formal grievance, and less than 1% started a Tribunal claim. In reality, the legal and practical mechanisms to challenge unlawful or unfair conduct by employers are all in situ already.
- Against all this, the report does indicate some regrettable attitudes among a minority of employers. A quarter felt that it was reasonable during recruitment to ask women about their plans to have children and whether they were pregnant at the time. About a fifth felt that pregnant women and mothers returning from maternity leave were not as committed to work and were less interested in career progression and promotion than other employees. Such attitudes are bound to manifest themselves in discriminatory decisions from time to time, however carefully suppressed by the employer. However, it is absolutely not the case that they always will, or even usually will. Unfortunately a report based on perception is not based on fact and so the headlines and public statements about this one are based on very shaky ground.