Legal Opinion: What’s driving the rise in working mothers?

New figures produced by the Office of National Statistics’ Labour Force Survey show that the number of mothers in employment has risen by around 5% over the last 15 years. This has largely been driven by an increase in the number of mothers working full time, from 23.1% in 1996 to 29% in 2010. To what extent is this increase down to developments in employment law over this period?

Family-friendly employment rights

The rise of so-called “family-friendly” rights has been steadily gathering pace. In the last 15 years, we have seen the introduction of greater rights for mothers and fathers, most notably the increase in maternity leave up to the current maximum of 52 weeks, with statutory maternity pay now payable for 39 of those weeks.

The fact that new mothers are able to take up to an entire year’s maternity leave is a substantial improvement. It means that having a child no longer necessitates a career break and, where previously expectant mothers may have decided to leave work once they had a child, if they do so now it is more likely to be out of choice rather than necessity.

Key points

  • Maternity, paternity and parental leave, and flexible working legislation has empowered parents in the workplace.
  • The impact of the recession on families is likely to have increased the need for mothers to return to work.
  • The introduction of additional paternity leave will continue to improve the choices available to families.

There is now a much greater culture of shared parenting than there was 15 years ago. The law has enabled this, with the introduction of both parental leave and paternity leave. Fathers are now recognised as having a far greater role in a child’s upbringing.

Under the right to request flexible working, introduced in April 2003, employers are required to give proper consideration to a request to work flexibly, and may refuse only on the basis of limited prescribed reasons. The effect of the flexible working legislation has been to force employers to accommodate and create flexible working patterns. The third work-life balance employer survey, carried out by BERR (now the Department for Business, Innovation and Skills) in 2006, found that around 90% of employees felt that they had at least one flexible working arrangement available to them if required.

A refusal to allow a mother to work flexibly may also give rise to a claim for indirect sex discrimination, due to the fact that women are more likely to have childcare responsibilities then men. The case of London Underground v Edwards in 1998 introduced the notion of using a pool of comparators to determine if there has been indirect discrimination. This test has often been used to illustrate that any inhibitors to employees with childcare responsibilities may well be discriminatory against women. We have, therefore, seen mothers using discrimination law to enforce their employment rights increasingly over recent years.

The effect of the economic climate

The development in family-friendly legislation has certainly empowered women but it has not necessarily created the environment that is driving women to return to full-time work. The current economic climate is probably the most significant factor. Unemployment has risen sharply since the recession and now stands at levels not seen since the mid-1990s. It is now almost 3% higher than in 2000. The impact of the recession on families is likely to have increased the need for mothers to return to full-time work where it is available.

The recent introduction of additional paternity leave, which allows the effective transfer of up to 26 weeks of maternity leave to the father, will certainly provide families with more choices. It will allow families to choose the parent with the higher income to return to work (which in some cases may be the mother) while still allowing one parent to care for the child.

The legislation has no doubt helped strengthen mothers’ rights, but economic and financial pressures are more likely to have played a greater role in the small increase shown in the Labour Force Survey. It is more likely to be innovative employers providing home-working environments and different ways of working that will see more women returning to work full time, rather than the imposition of further burdensome legislation on employers.

Susanna Gilmartin, partner, and Andrew Morgan, trainee solicitor, Thomson Snell & Passmore

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