Discrimination following childbirth is horribly common

A large part of my practice is centred around supporting women who are returning to work from maternity leave.  It is horribly common that a woman returning to work from maternity leave will find herself at risk of redundancy shortly after she has taken the step to return.  It is often said to be the result of business restructure (the business considers it can manage without her) replacement (maternity cover bumps the woman returning) or, worse still, the business takes the view that a woman with a baby is just simply not up to performing her role as well or as diligently as she was before she had said appendage before she even gets a chance to show that is not the case.  I find this a ridiculous notion.  If a sleep-deprived mother can take care of a baby, change 5,800,000 nappies and stay sane, she can do her job.  I digress.  

What happens when I return to work from having a baby? Does the law help?

Many women returning from maternity leave do not know that despite returning to work, they remain protected by the law for the purposes of being made redundant.  This means that any woman who is pregnant or on maternity leave is afforded protection from redundancy from the date she confirms her pregnancy, to the date that the baby turns 18 months old.

What does this protection mean in reality? 

It is not, as the word protected may mean that an employer is not able to make her redundant.  It simply means that during that protected period the woman has the right to be offered a suitable alternative vacancy (if there is one) before her existing contract comes to an end.  The ‘alternative vacancy’ must be one where the work being offered is both suitable and appropriate for her to do in the circumstances and the terms of that role must not be substantially less favourable than the terms of her previous role. 

But what steps does an employer have to take to support a new mother at work? 

What is not expressly considered or set out in legislation is what steps an employer has to take to support a woman to secure a suitable alternative vacancy, so as to avoid her redundancy.  This always puzzles me and is the crux of the challenge I face when I represent women who are placed at risk of redundancy when returning from maternity leave.  I usually find the employer has done little to explore an alternative role and often, as we well know, the decision to make someone redundant is made well before they are placed at risk of being made redundant.  The question always arises but is this really a redundancy or just a way to get rid of a new mother? The exercise of exploring an alternative role is somewhat futile as there is often no intention of retaining the returning woman in the business.  I have come across situations where women have been removed from the company systems when placed at risk of redundancy for ‘security reasons’ and then, understandably are hindered from looking for other roles.  They have no access to their internal network and cannot be first in line when a vacancy becomes available.  Also, as a suitable alternative vacancy is supposed to be offered without a competitive process (you are slotted into role, you do not apply), many hiring managers are put off by the fact that they cannot subject the woman to the usual selection process and won’t choose her.  This is somewhat understandable.  You want a prospective candidate to fit the bill or be of a certain standard, before you offer them a role.  

My push back when it comes to supporting women in these circumstances is to highlight that a decision to put them at risk of redundancy often comes with a predetermined outcome, and that the employer is not taking reasonable or sufficient steps to find them an alternative role.  I often have to try and explore (with some tenacity) what is going on behind the scenes and what steps are being taken (if any) to find an alternative vacancy (a Data Subject Access Request can be of use here).  Often the window of opportunity is narrow and redundancy consultation can happen quite quickly. Women are rushed into a process and barely have time to think let alone get any legal advice. Women are disadvantaged by the fact that recruitment processes take time to percolate, and they are out of the door before opportunities have been effectively explored and before they have had the opportunity to put themselves forward.

Feeling vulnerable after returning from maternity leave

You also have to remember that this is all taking place at a time when a woman is vulnerable, returning to work from maternity leave, like a rabbit in the headlights, checking herself to see if she has baby sick on her shoulder and most likely overwrought by months of sleep deprivation. I speak from (bitter) experience. Not only are you likely to be sleep deprived and adjusting to life with a new presence in the house but you have missed what has been going on at work during your maternity leave and already feel left out. Imposter syndrome will be heightened, and the workplace may seem like a foreign land, far removed from mother and baby groups, baby massage and whatever else has been taking up your time until work restarts.

Do the protections for working mothers go far enough?  

Fundamentally, even the protected period does not go far enough and, from where I am sitting, women are really no better off than where there were before.  If an employer decides to make you redundant, you face the uphill battle of challenging this, either through the grievance procedure or a women’s rights/discrimination lawyer like me.  Lawyers are a luxury (or a distress purchase) and we don’t come cheap.  By the end of maternity leave most women are on zero pay and desperate to get back to work for income (and to recover their sanity).  They are not in the optimal position to be spending money on defending their position.  Many women are fearful that if they litigate against their employer for reasons such as sex and/or maternity discrimination, they might mar their future career prospects by virtue of a publicly available judgment on the Employment Tribunal website.  The focus is often securing another role as quickly as possible and mitigating loss which leaves the bad employers unchallenged and so the bad behaviour continues.

Is there any hope for working mums? 

Yes, you do have options. Women can call out the fact that they think bad faith is at play or that the outcome or the fact of being at risk of redundancy is pre-determined.  I encourage women to stand their ground and fight their corner.   I advise them to challenge the fact that reasonable steps are not being taken to find them an alternative role and ensure that they understand that they are within the protected period (and that the employer is on notice of this).    Always remember that knowledge is power.  In addition, commercially, businesses do not want to spend time and money on defending tribunal claims and some do fear how it looks to the outside world if they are seen to discriminate meaning that a settlement offer might be in the offing to at least tide you over until you can find a good new position.  Reputational damage can sometimes also be a persuasive factor in reaching resolution.   

I am not saying that all women should try to settle maternity related redundancy disputes with their employers but, given the state of the Employment Tribunal Service and the costs of bringing a claim (in addition to the stress it can cause), negotiating a financial outcome that both allows for time to secure another role and goes some way to ameliorate the damage caused, can be just the outcome needed.  Life is short. 

Didlaw is a boutique discrimination firm with a passion for supporting women.  This makes us perfectly placed to help any woman facing difficulties in returning to work following maternity leave.  Let us help. 

This blog was written by Elizabeth McGlone, Managing Partner of didlaw and a fierce advocate for the rights of women in the workplace and beyond.