Pregnancy & maternity discrimination – Seán Crossan's Scots Law

International Women’s Day (What’s so great about it?)

Today is International Women’s Day, but is there much to celebrate in terms of concrete progress since I spoke about this topic last year?

The answer to the question is that progress women’s equality remains very much a mixed picture. If you look at figures produced for the European Gender Equality Institute, the UK is certainly in the top 5 of selected European countries. This is in stark contrast to Central and Eastern European nations (e.g. Bulgaria, Poland and Romania). Surprisingly, Germany does less well amongst its Western European neighbours, whereas Greece and Portugal are way down the index.

A link to a gender equality index for European countries can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.070320/data/9384076/index.html

These figures may not be entirely surprising to regular readers of this Blog: in the first few months of 2020, I have highlighted the continuing gender pay gap (which continues to be stubbornly difficult to close) and pregnancy discrimination.

Speaking of pregnancy discrimination, two recent employment cases have highlighted how much of a problem this continues to be.

In 2019, an Industrial Tribunal (yes, they still exist in Northern Ireland) ruled that McGranes Nurseries Ltd had discriminated against one of its pregnant employees, Laura Gruzdaite, who was unfairly dismissed when she took time off work to attend a scan as part of her ante natal care. Ms Gruzdaite had informed her employer that she was pregnant.

In Northern Ireland, slightly different equality legislation is relevant to cases like that of Ms Gruzdaite, but the general objective is very similar. Had the case occurred in Scotland or England, we would have been discussing the Employment Rights Act 1996 which, of course, gives pregnant women a legal entitlement to take time off work to attend these types of appointment. In Northern Ireland, the relevant legislation is the Employment Rights (Northern Ireland) Order 1996.

As for the actual pregnancy discrimination, we would have been referring to the Equality Act 2010, but in Northern Ireland, the Sex Discrimination (Northern Ireland) Order 1976 contains the relevant law.

Ms Gruzdaite was awarded £28,000 in compensation from her former employers – significantly, £20,000 of this award represented an injury to feelings element.

Interestingly, the employer also got Ms Gruzdaite to sign a blank contract of employment which did not specify whether she was a temporary or permanent employee. All very suspect and an obvious breach of our Employment Rights Act too (and I’m certain of the Northern Ireland Order of 1996), but that’s a different story for now.

A link to the Industrial Tribunal’s decision can be found below:

https://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/OITFET%20online%20decisions%20as%20pdfs/Gruzdaite-v-McGranes-Nurseries-Ltd-July19.pdf

Pregnant woman ‘unfairly dismissed’ rules industrial tribunal

In the second case, from England, Maya Georgiev was employed by Hanover Insolvency Ltd. She had not informed her employer that she was pregnant; she had been absent from work due to pregnancy related illnesses; and she was subsequently called to a disciplinary meeting. At this meeting, Ms Georgiev explained the reasons for her absence from work, but to no avail as her manager dismissed her. This was an unfair dismissal in terms of the Equality Act 2010 and the Employment Rights Act 1996.

Ironically, Ms Georgiev would have been better protected had she disclosed her pregnancy to her employer from the outset, but when the employer became aware of her situation it should have recognised that it had a duty not to discriminate against her by reason of her pregnancy. The Employment Tribunal will hold a Hearing on remedy later this year.

A link to the decision of the Employment Tribunal in this case can be found below:

https://assets.publishing.service.gov.uk/media/5e565151d3bf7f3947cf26a5/Miss_M_Georgiev_v_Hanover_Insolvency_Limited_-2400113_2019-_Judgment.pdf

A link to a story about Ms Georgiev’s experiences can be found below on the People Management website:

https://www.peoplemanagement.co.uk/news/articles/worker-discriminated-against-after-boss-unfairly-dismissed-her-for-pregnancy-related-absences

Even in areas where progress has undoubtedly been made family friendly policies such as maternity leave – the English Court of Appeal recently ruled in Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police (2019) EWCA Civ 900 that it is not discriminatory to offer more generous family friendly arrangements to female employees. This may seem quite progressive on the face of things, but it continues to place the emphasis on women being the primary carers of children. It doesn’t exactly encourage a cultural shift towards more men taking time off work to care for their children.

The worst case scenario

… And finally, a rather stark reminder that, although progress for women’s rights has undoubtedly occurred, the overall picture remains very uneven. In certain parts of the world, being female means that you are more likely to be murdered. A phenomenon so prevalent in the Central American countries of Honduras and El Salvador that they refer to it as femicide.

You can find a link to this story on the Sky News website below:

https://news.sky.com/story/the-most-dangerous-place-in-the-world-to-be-a-woman-11950981

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/

https://seancrossansscotslaw.com/2020/01/11/pregnancy-discrimination-or-new-year-same-old-story-part-2/

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/03/11/born-leader/

Copyright Seán J Crossan, 8 March 2020

Pregnancy discrimination (or New Year, same old story … Part 2)

Photo by Sincerely Media on Unsplash

We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.

Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.

Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.

This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.

Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines). In fact, Ms Larkin was awarded £10,000 in compensation to reflect injury to feelings.

A link to the judgement of the Employment Tribunal can be found below:

https://assets.publishing.service.gov.uk/media/5e2f0300e5274a6c42dcd132/Mrs_H_Larkin_v_Liz_Earle_Beauty_Co._Ltd_-_1403400.2018.pdf

A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.

A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:

https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/pregnancy-and-maternity-discrimination-research-findings

Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.

Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) which campaigns to end the ‘motherhood penalty’:

https://pregnantthenscrewed.com

A link to Helen Larkin’s story as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110120/data/9278901/index.html

Related Blog articles:

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

https://seancrossansscotslaw.com/2019/07/08/just-blew-it-again/

https://seancrossansscotslaw.com/2019/08/22/the-trouble-with-pregnancy/

https://seancrossansscotslaw.com/2019/09/10/barbaric/

Copyright Seán J Crossan, 11 January 2020

Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Postscript

Lest we become judgemental about the US Penal system, on 4 October 2019, The Guardian reported that the new born child of an inmate at HM Prison Bronzefield in Surrey had died. The mother had been in an “advanced state” of pregnancy, but had been left alone in her cell overnight when she had given birth to the child.

A link to the story can be found below:

https://www.theguardian.com/society/2019/oct/04/baby-dies-in-uk-prison-after-inmate-gives-birth-alone-in-cell

Copyright Seán J Crossan, 10 September and 4 October 2019

The trouble with pregnancy …

Photo by Xavier Mouton Photographie on Unsplash

According to a study just published by the Young Women’s Trust, it would appear that, in 2019, pregnancy discrimination in employment is more common than you might have thought.

The figures seem to show that 10% of those employers who were questioned would be very hesitant to hire a female candidate because of fears that she may decide to have a child in the near to long term future. Male bosses were much more likely to discriminate against female employees in this manner.

Section 18 of the Equality Act 2010 makes it illegal for employers to treat a woman less favourably in relation to pregnancy and maternity. Thankfully, there is no longer a requirement for a women to identify a male comparator in cases of alleged pregnancy and maternity discrimination (Section 17 of the Act deals with discrimination in non-work cases).

The Equality Act was particularly significant for women. Probably, for the first time in UK anti-discrimination law, less favourable treatment in relation to the issues of maternity and pregnancy would be dealt with in a more comprehensive and integrated fashion. Under the older equality laws, such as the now defunct Sex Discrimination Act 1975, women could not always be confident that they would receive protection under the law in connection with these important issues. Regrettably, repeated failures by the UK Parliament in this area meant that the intervention of the European Union had to be called upon when domestic law was found to be inadequate.

Ultimately the Court of Justice of the European Union would improve the legal situation for pregnant women (see Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus [1991] IRLR 27, a case which originated in the Netherlands).

In Dekker, the Court of Justice stated unequivocally that it is always direct discrimination to refuse to offer employment to a woman for reason of her pregnancy. The Court also made it clear that a pregnant woman does not have to compare herself to that of a male co-worker/employee.

The provisions of Section 18 of the Equality Act implement the European Union’s Equal Treatment Directive (2002/73) in relation to maternity and pregnancy.

The Directive contained far stronger rules expressly forbidding discrimination on the grounds of pregnancy and maternity leave. This should mean that pregnant women now receive much stronger legal protection in employment. Pregnant employees must, however, prove that the less favourable treatment suffered by them was by reason of their pregnancy.

An employer will also commit an act of direct sex discrimination if a female employee is dismissed by reason of her pregnancy (see O’Neill v Governors of St Thomas More [1996] IRLR 27). The dismissal can also be challenged on the grounds that it is automatically unfair in terms of Section 99 of the Employment Rights Act 1996.

Yet, despite all this legal protection, we still hear stories about the prevalence of pregnancy and maternity discrimination in the work-place. The one bright spot in the story is that the number of employers who stated that they would be reluctant to hire a female employee due to pregnancy concerns had actually decreased. That, at least, is a small crumb of comfort, but still not much to be overjoyed about.

Links to the story can be found below

http://news.sky.com/story/dinosaur-bosses-reluctant-to-hire-women-who-may-get-pregnant-11790837

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/1011_employers_say_theyd_be_reluctant_to_hire_women_who_may_have_children

A link to a recent case from Northern Ireland where a pregnant woman successfully sued her employer for discrimination can be found below:

Pregnant woman ‘unfairly dismissed’ rules industrial tribunal

Laura Gruzdaite was accused of “skipping work” despite telling bosses about a baby scan.

Copyright Seán J Crossan, 22 August & 25 September 2019

Don’t do it!

Don’t do what? Get pregnant, it would seem if you’re a female athlete who receives sponsorship from one of the planet’s most visible sporting brands.

Just this week, allegations have been made by a number of female athletes that Nike withdrew sponsorship after they discovered that they were pregnant.

Now, if the allegations are true, this would certainly represent an example of unlawful, less favourable treatment. Pregnancy and maternity discrimination are prohibited in terms of Sections 17 (non-work cases) and 18 (work cases) of the Equality Act 2010. They are very specific forms of sex discrimination (a person’s sex or gender is a protected characteristic in terms of Section 11 of the Act).

In 2019, you might have been forgiven for thinking that pregnancy discrimination was a thing of the past…

The Sex Discrimination Act 1975

The (now repealed) Sex Discrimination Act 1975, which was held up as a significant advance for woman’s equality, was fundamentally flawed when it addressed the issue of pregnancy and maternity discrimination.

When the Act of 1975 was first introduced, cases involving alleged discrimination connected to a woman’s pregnancy encountered an unexpected problem, which the Parliamentary draftsmen had not taken into account: how could it be valid to attempt a comparison between that of a pregnant woman’s situation with that of a man? A strict application of the legislation meant that this was not a valid comparison and, therefore, many of the earliest sex discrimination claims failed because some judges applied the literal approach to the interpretation of the Act – even if this made the law something of an ass and, more seriously, led to blatant injustice.

This Act made it very clear that central to the success of any claim was the complainant’s ability to compare his or her allegedly less favourable treatment to an actual or hypothetical male/female comparator. If he or she could not do this, the claim would fail. A woman claiming that she had suffered discrimination on the grounds of her sex must have been able to carry out a like with like comparison.

The woman’s circumstances and those of her male comparator must have been broadly the same (they should not have been materially different) otherwise a meaningful comparison could not be made.

The European Union

This situation really continued into the 1990s and, it was only when the Court of Justice of the European Union resolved the matter in Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), that things started to improve. Dekker clearly established that there was no requirement for pregnant women to identify a male comparator when they were alleging that they had experienced unlawful, less favourable treatment.

The Equality Act 2010 now, in theory, affords pregnant women and mothers much stronger legal protection than the Sex Discrimination Act 1975 ever did, but yet examples of pregnancy and maternity discrimination still arise.

It was as recently as 2016 that the Equalities and Women Committee of the House of Commons exposed the shocking extent of pregnancy and maternity discrimination in the UK. Maria Miller MP, chair of the Committee stated:

“Our 2016 report laid bare the significant discrimination and poor treatment faced by 54,000 pregnant women and mothers at work each year.”

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Just do it?

Being deadly serious, the above slogan (of Nike) will hardly sit well with those female athletes in receipt of sponsorship from the company. That said, should we really be surprised that stories of this nature emerge when read against the Report of the Women and Equalities Committee?

A link to the article about alleged pregnancy discrimination as reported by Sky News can be found below:

Pregnant athletes ‘punished’ by Nike, says champion British runner Jo Pavey
http://news.sky.com/story/pregnant-athletes-punished-by-nike-says-champion-british-runner-jo-pavey-11721817

In 2018, Nike was praised for endorsing Colin Kaepernick, the former African American Football star who had actively campaigned to raise awareness of racial inequality. Now with these sex discrimination allegations, is it a case of one step forward, ten steps back for Nike?

Postscript

On 26 May 2019, The Independent reported that Nike had promised not to impose financial penalties on those female athletes who became pregnant and who were in receipt of sponsorship from the corporation. This was undoubtedly due to the considerable, adverse publicity which the story had generated around the world.

A link to the article in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.260519/data/8930341/index.html

On 17 August 2019, the BBC reported that Nike had removed the offensive clause from its contracts with female athletes.

A link to the story can be found below:

Allyson Felix: Nike changes policy for pregnant athletes

Six-time Olympic gold medallist Allyson Felix says female athletes will “no longer be financially penalised for having a child” after Nike changed its sponsorship contracts.