Pregnant and precarious: new and expectant mums’ experiences of work during Covid-19

TUC’s research has found that as the Covid-19 health crisis has turned into an economic crisis, new and expectant mums are paying a significant price in the labour market, facing high levels of discrimination and disadvantage in the workplace.

Since the Covid-19 crisis began

• One in four pregnant women and new mums in our survey have experienced discrimination or unfair treatment at work, including being singled out for redundancy or furlough.
• More than one in 10 pregnant women responding to our survey said their commitment had been questioned by their manager or employer.

These new findings support previous TUC research and the government’s own research with the EHRC that found pregnant women and mums experience unacceptable levels of discrimination and disadvantage in the workplace. 7 . This creates a ‘motherhood’ penalty at work as a result of negative and discriminatory attitudes from managers and employers.

Many managers wrongly believe female employees returning to work from maternity leave harbour lower levels of aspiration in the workplace.8 . This holds back women’s progression in the workplace, meaning they are overlooked or denied promotion opportunities or face significant pay penalties. During the current crisis it has also led to many pregnant women being unfairly targeted for redundancy or furloughing.

• 7 TUC (2016) The Motherhood Pay Penalty TUC (2020) Forced Out: the cost of getting childcare wrong; HM Government & EHRC (2016) Pregnancy and Maternity Discrimination and Disadvantage: summary of findings
• 8 Harris, A (2020) Negotiating Ambition: mothers’ experiences of career progression in commercial retail careers available

Fear of unfair treatment and negative repercussions also prevented mums from speaking out about health and safety concerns. One mum told us “I didn’t want to be seen as making a fuss.” Feeling unable to speak out and challenge unsafe working practices is rooted in the fear of negative repercussions that could impact job and earnings. These fears appear to be justified. Evidence from the EHRC suggests over one in four employers (28 per cent) describe enhanced protection for new mums as ‘unreasonable’. 9 . Our research shows that some employers have even used Covid-19 to try and undermine their statutory obligations towards new mums on maternity leave.

• 9 EHRC (2016) Pregnancy and Maternity Discrimination and Disadvantage: summary of findings 

Our findings show that mums currently on maternity leave are facing a huge challenge around returning to work because of difficulties with childcare. 70 per cent of mums on maternity leave in our survey that plan to return in the next three months are unable to find childcare to enable them to return to work. This is because of the crisis facing the childcare sector as a result of Covid-19.  10 . As many as one in four providers do not think they will be open by Christmas while others may only be able to open safely on reduced hours or with fewer places under social distancing rules. This has created a significant squeeze on childcare places. Parents whose children were not in childcare prior to the Covid-19 crisis are now finding they are unable to access a new place for their child. Without immediate action to resolve these issues, women with caring responsibilities and those returning from maternity leave are at higher risk of being unfairly targeted for redundancy and dismissal due to difficulties with their childcare.

Pregnancy and maternity discrimination intersect with other forms of discrimination that women experience in the workplace. BME and disabled women and younger women face higher levels of discrimination in the workplace. EHRC research revealed that disabled women were more likely to experience discrimination when pregnant or on maternity leave and more than twice as likely as others to feel forced to leave their job as a result of risks not being resolved.  11 .A number of disabled women and women with long-term health conditions responding to our survey echoed these findings.

• 10 TUC (2020) Forced Out: the cost of getting childcare wrong
• 11 EHRC (2016) Pregnancy and Maternity Discrimination and Disadvantage: summary of findings

Recommendations

Employers must maintain new and expectant mums’ equal access to relevant pay and progression opportunities. When considering redundancies and other cost-cutting measures, employers must ensure that the decisions that they take and the criteria used to inform these decisions do not discriminate against women, particularly pregnant women and new mums. Failure to do so would mean breaking the law.

Trade unions will continue to promote the rights of pregnant women and new mums and proactively challenge discriminatory behaviour. In cases of sex discrimination, we will fully support our members to take up employment tribunal cases. We urge the government to extend the current three-month time limit to bring a tribunal case to at least six months. Doing so would ensure pregnant women and new mums who have faced discrimination are not unfairly timed out of accessing justice.

The government should join trade unions in taking proactive steps to promote guidance on existing protections for pregnant women and those on maternity leave to employers and individuals so that they are aware of their respective obligations and rights. Emphasis should be placed on redundancy procedures and selection criteria, including the right of women on maternity leave whose role is made redundant to be given priority during redundancy processes and offered the first option on any suitable alternative work before any other employee. 12

The government should also act urgently to deliver on its commitment to make flexible work the default, as set out in the Queens Speech, 13 by giving all workers the right to work flexibly from their first day in the job. This would help working mums balance work and care. Crucially, this should include the right to predictable hours. Flexibility at work can take lots of different forms, including the right to predictable hours, working from home, flexi-time, job-sharing, compressed hours and term-time working.

To deliver default flexible working, the government should introduce a new duty that would require employers to publish flexible working options in job adverts and give workers the right to take up the advertised flexibility from day one. If employers feel that a role cannot accommodate any form of flexibility, they should be required to set out transparently the exceptional circumstances that justify this.

Alongside this, the government should strengthen the current right to request flexible working legislation to include a day-one right for all workers to request flexible working. The criteria that employers can use to justify refusing requests should also be more tightly drawn and an appeal process should be introduced that allows individuals to scrutinise and challenge the reasons given for rejecting a request.

By making flexible work the norm, the government would also help new mums who are facing huge difficulties accessing childcare in the light of current restrictions on early years settings.

Action is also needed to ensure that while social distancing measures remain in place, enough childcare places are available to enable working mums to do their paid jobs. The government should take urgent action to give a critical cash injection to the childcare sector to ensure providers can remain open and financially viable.

Women who are forced out of the labour market due to pregnancy and maternity discrimination or because of caring responsibilities suffer financial disadvantage in taking a lower paid job when they are able to return to work, 14 while employers lose a skilled and valuable workforce. The government must act immediately to strengthen existing protections for pregnant women and new mums at risk of unfair treatment and discrimination. Our evidence has shown women are being unfairly singled out for redundancy and furloughing. This is likely to increase as the job retention scheme winds down. The government must therefore follow through with its commitment to extend the maternity redundancy protection period to six months after a new mum has returned from maternity leave.

There should be clear disincentives for employers who break the law. The EHRC, as the regulatory body responsible for enforcing the Equality Act, also has a unique role to play in this. The EHRC has been given a range of powers to deliver on its statutory role and ensure employers are not flouting the law. Where there is the need for formal steps to be taken to address breaches of the Act, including those relating to the public sector equality duty, we would urge the EHRC to take these in a timely manner. Government should ensure that the EHRC has the additional resources required to conduct this work.

We also recommend that the EHRC use its expertise to monitor the continuing impact of Covid-19 closely, and the response to it on pregnant women and new mums, particularly those with multiple protected characteristics. It should report publicly both on this and the effectiveness of the steps government and other key policy makers are taking to remove or minimise adverse impact and meet the needs of this group of workers. In order to inform this, government should deliver on its commitment to repeat the in-depth research on pregnancy and maternity discrimination and disadvantage it conducted in 2015 as a matter of urgency. 15

As the economic impacts of this health crisis look set to worsen, the government must also urgently consider additional measures to promote gender equality and strengthen protections for pregnant women and new mums. These could include:

• requiring employers to publish on the retention rates for women from when they announce their pregnancy for up to two years after they have returned from maternity leave, as part of gender pay gap reporting regulations
• increasing protection from unfair redundancies so that new and expectant mothers can be made redundant only in specified circumstances.

• 12 If a woman is made redundant during her maternity leave, regulation 10 of the Maternity and Parental Leave etc Regulations 1999 states that a woman on maternity leave must be offered a suitable alternative vacancy, if one exists, as soon as her post is at risk of redundancy.
• 13 PMO (2019) The Queen’s Speech 2019 available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Queen_s_Speech_December_2019_-_background_briefing_notes.pdf 
• 14 EHRC (2016) Pregnancy and Maternity Discrimination and Disadvantage: summary of findings
• 15 Government response to the House of Commons Women and Equalities Committee report on pregnancy and maternity discrimination (January 2017) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/585806/pregnancy-maternity-discrimination-wec-report-response-web.pdf