Firms may keep mum on avoiding hiring women

Tighter equal opportunities regulation to protect pregnant employees may
drive errant employers to sidestep discrimination by avoiding recruiting young

On 1 September 2003, the Equal
Opportunities Commission (EOC) launched the first -ever formal UK-wide
investigation into discrimination faced by pregnant women at work. This will
run until February 2005 when it intends to make formal recommendations to the
Secretary of State for Trade and Industry.

This follows Patricia Hewitt’s invitation to the EOC in May to follow this
path and comes hard on the heels of a record number of complaints being made to
the EOC helpline by pregnant women across all industries who feel that they
have experienced a range of unfair treatment. This includes dismissal, lack of
promotion, change of salary terms, unfounded criticism, downgraded appraisals,
non-payment of bonuses, change of shift hours, disciplinary action about performance
and an inability to return to their pre-maternity employment status.

While I welcome this investigation, I am concerned that if one of the
recommendations is to introduce more laws to protect pregnant women, employers
inclined to be errant will be driven towards further and more blatant instances
of discrimination – perhaps in recruitment practices, to avoid recruiting women
of childbearing age.

There is a cost to industry of supporting pregnant workers and in the
current economic climate, when some employers are struggling for survival, it
is inevitable they will be looking for ways to reduce their costs.

The law has recently provided many new provisions to safeguard the rights of
pregnant workers, which is, ultimately, a giant step forward. However, it
should not be forgotten that the law creates rights which require the woman to
take legal action – a daunting prospect for the uninitiated – for compensation
to be awarded.

There is also a natural time delay as impecunious mothers-to-be are likely to
delay entering into such litigation. In addition, many women are vulnerable
during pregnancy and shy away from stressful situations (including litigation)
for the sake of their unborn child.

Nor is victory always assured. There are always two sides to any story.
While a pregnant employee may feel aggrieved at being subjected to some act she
considers to be unlawful, believing it to be because of her pregnancy, the
employer may put forward a perfectly legitimate and legal explanation for such
action which either demonstrates she has no claim against it or that it has a
defence to any claim.

The case of Nomura International and Andrea Madarassay is such an example.

Madarassay was made redundant from her £70,000 job and brought a claim for
sex discrimination (among other things) against Nomura. But she was
unsuccessful in all claims other than one which confirmed that Nomura had not
conducted a risk assessment in relation to her pregnancy.

Having said that, some do succeed, including the case of solicitor Harriett
Davies-Taheri against her employer, Proddow Mackay, in which she was awarded
£30,000 for sex discrimination.

It is recognised that HR professionals face an uphill struggle in dealing
with any instances of discrimination of pregnant workers in their organisations
as they may well be dealing with any transgressions after they have occurred –
usually by the direct line managers or colleagues of pregnant employees who may
not be clued up on all the relevant rules.

Given this EOC investigation, I would recommend that HR professionals follow
this checklist:

– Check that employment handbooks and any maternity policies are up to date
and have taken account of all the new maternity and flexible working rules
introduced recently

– If all is in order, inform the head of compliance or CEO of the
organisation of the existence of the EOC investigation, the range of
liabilities which employers have suffered for transgressions, and obtain their
buy-in for support for training sessions for managers and other workers who may
make comments or act in an unlawful way towards pregnant workers

– Provide training sessions for managers and other staff

– Work with managers who wish to get rid of pregnant workers to ensure they
have legitimate legal reasons for their decisions, and are not simply doing so
on a whim.

By Jessica Learmond-Criqui, Head of employment and immigration, Collins
Benson Goldhill

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