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

For mums and mums-to-be, pregnancy and new motherhood can be an exciting time. It can also be a time full of new challenges and experiences and feelings of anxiety can be a natural part of this process.

Anxiety about the health and economic impacts of the Covid-19 crisis have inevitably added to the worries new mums face. Experts have warned Covid-19 has had a negative impact on maternal mental health beyond that seen in the general population, where reported rates of anxiety have more than doubled.  4 .

Work should be a safe place where mums are supported during pregnancy and in the early stages of motherhood. Employers that follow good practice increase the likelihood of maintaining a skilled and diverse workforce, which positively impacts profitability.  5 . If employers and employees work together to put plans in place for pregnancy, maternity leave and return to work, it can lead to higher levels of employee satisfaction and increased staff retention.  6 .

However, our new research has identified three area of huge concern for new and expectant mums at work, to be discussed in the following chapters:

• shocking levels of pregnancy and maternity discrimination
• employers flouting health and safety law and putting women’s lives at risk
• a dramatic fall in availability of childcare for mums returning from maternity leave
• a lack of adequate and equal protection for mums on zero-hours contracts.

As the economic downturn deepens and employers try to do more with less, the TUC are deeply concerned that our new research shows discrimination and employers’ negative attitudes towards pregnant women and new mums is intensifying.

Without immediate action from the government, women could be forced out of their jobs, decades of incremental improvements in gender equality at work will be reversed, working families will lose vital income and the gender pay gap will widen.

• 4 Oral evidence given to the Petitions Select Committee, 21 May 2020, transcript available at https://committees.parliament.uk/oralevidence/408/default/
• 5 Hunt et al (2018) Delivering Through Diversity available at www.mckinsey.com/business-functions/organization/our-insights/delivering-through-diversity
• 6 EHRC (2019) Working Forward

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 

Pregnancy can be a stressful enough time for any woman without them having to worry about dangers at work as well.  While there are clear laws in place to protect new and expectant mums, many employers don’t know what they should be doing or are ignoring their legal responsibilities.

Since the crisis began

• 30 per cent of pregnant women in our survey feel very or somewhat unsafe at work.
• Two in five pregnant women in our survey have not had a health and safety risk assessment.

Of those workers in our survey that did have a health and safety risk assessment:

• Almost half (46 per cent) said their employer did not take the necessary action to reduce the risks identified.
• Over a quarter of pregnant women said the risk assessment did not include the additional risks posed by Covid-19.

We also found examples of good practice from employers. Over a quarter of women who raised their safety concerns with their employer said adjustments were made such as increased homeworking or being redeployed to a non-public facing role.

However, a significant number of pregnant women (46 per cent) said their employer took no action to address the risks or to adjust working conditions to ensure they were not put at risk. This is in breach of a pregnant woman’s legal rights. Employers are legally required to reduce or remove risks to a pregnant woman’s health. If this cannot be done, she has a right to be offered suitable alternative work, on the same rate of pay, or to have her working conditions adjusted. If none of these measures are possible, she should be suspended on full pay, based on her usual earnings, until the risk is gone. 16

The TUC has warned the government that employers are routinely flouting this law. 17 . Our research has uncovered that employers are wrongly forcing pregnant women to take unpaid leave, to go on sick leave when they are not sick, to start their maternity leave early or tell them they must work despite the risk to their health. This has an immediate impact on women’s income, leading to a substantial, if not total, loss of income.

• 16 Under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242). Health and Safety Executive, Guidance: new and expectant mothers - the law
• 17 TUC; Maternity Action (2019) Employers not doing enough to keep pregnant women safe at work https://www.tuc.org.uk/news/employers-not-doing-enough-keep-pregnant-women-safe-work-tuc-and-maternity-action-warn

Our findings show that low-paid women in our survey are nearly twice as likely as median to high earners to have been wrongly forced out of work and to have lost pay. 28 per cent of low-paid pregnant women told us they were forced out of the workplace on unpaid leave, sick leave or early maternity leave compared to 17 per cent of median to high earners.

This has a huge impact on the household incomes of low-paid women, at a time when most families’ household budgets are under significant pressure preparing for a new baby alongside the wider household financial pressures of the Covid-19 crisis.

Being forced out of the workplace also has consequences for mums’ incomes during maternity leave. Given the low level of statutory sick pay, 18  and the consequences of taking unpaid leave, a woman’s eligibility for statutory maternity pay (SMP) could be negatively impacted if she has to take unpaid leave or sick leave before maternity leave, instead of being sent home on full pay as per her legal entitlement. Should her average income fall below the SMP qualifying threshold (£118 per week) during pregnancy an expectant mum becomes ineligible for SMP. This could result in women unfairly missing out on thousands of pounds of their income as women would then only be eligible for maternity allowance (MA).

Not only would this deny women their entitlement to the enhanced rate of SMP, 90 per cent of average earnings, but it can also leave low-paid women worse off as MA is calculated differently to SMP under universal credit. MA is treated as unearned income, whereas SMP is regarded as earned income resulting in a lower award, potentially up to £5,000 a year. This lack of parity is unjustifiable and denies women on the lowest income the financial support that their higher-earning peers receive.

Recommendations

The government must ensure employers are not breaking the law. The government should take immediate proactive steps to make it clear to employers that pregnant and breastfeeding women have the right to suspension on full pay based on their usual earnings, if risks cannot be removed, reduced or working conditions cannot be temporarily adjusted.

Trade unions will continue to safeguard the health and wellbeing of women in the workplace and we want to see women having much stronger rights to influence their working lives. The government should introduce new rights to make it easier for women to negotiate collectively with their employer , including simplifying the process that workers must follow to have their union recognised by their employer for collective bargaining and enabling unions to scale up bargaining rights in large, multi-site organisations. Unionised workplaces are safer and more equal than non-unionised workplaces. 19  Workers are much less likely to express job-related anxiety in unionised workplaces than comparable non-unionised workplaces; the difference is particularly striking for pregnant women and those with caring responsibilities.20

The government should work with trade unions and the relevant regulatory bodies to ensure new and expectant mums have confidence that as the crisis continues, their health and that of their unborn baby will not be put at unnecessary risk. All employers are required to carry out a specific Covid-19 risk assessment, developed in consultation with unions and workers. This should be agreed with the staff trade union, where there is one, and be approved by one of the UK’s 100,000 trade union health and safety reps, or by a Health and Safety Executive (HSE) inspector, to make sure that it is robust. These assessments must take explicit account of the risks faced by new or expectant mums.

The relevant regulatory bodies, such as the Health and Safety Executive, should also play their part. We would like to see the HSE act with urgency on the findings in this report to safeguard pregnant women and ensure they stay safe at work. The HSE could support employers in meeting their requirements by providing model risk assessments for particular sectors and occupations where there is increased risk during the Covid-19 crisis, starting with the health and social care sectors. It should aim to do this within the next three months.

The government should also review its own decision- and policy-making to ensure it is not unfairly disadvantaging pregnant women and new mums. The specific circumstances of pregnant women and new mums has been consistently overlooked in guidance on the job retention scheme (JRS), self-employment income support scheme (SEISS) and in the ‘working safely during coronavirus’ guidance, with little proactive work by government undertaken highlight the specific rights and entitlements of parents and carers during the crisis. This has created additional and unnecessary risk and disadvantage for new mums and their families. Self-employed mums who have recently taken maternity leave are at a significant disadvantage compared to their peers in the self-employment income support scheme. These mums lose out because their time out of the workplace is not disregarded when calculating their entitlement to support based on taxable profits over the last three years. The financial cost of rectifying this mistake and the lack of parity for mums on maternity allowance would be extremely low for government but it would make a massive difference to women and their families.

The government has latterly set out to employers that parents who cannot access childcare are eligible for furlough, but with the scheme set to close to new entrants on 10 June any new mum set to return from maternity leave who finds herself without childcare after this date will not be eligible for furlough. This must be urgently rectified.

• 18 Statutory Sick Pay is paid at a rate of £95.85 per week.
• 19 OECD (2018) Good Jobs for all in a Changing World of Work: Jobs Strategy
• 20 OECD (2018) ibid

Pregnant women in low-paid, insecure forms of work such as zero-hour contracts are at the sharp end of the UK labour market. Prior to the Covid-19 pandemic, the evidence 21 suggested new and expectant mums employed on agency or zero-hours contracts, particularly those in the health and social care sector, were more likely to:

• report a risk or impact to their health and welfare than other types of worker
• be more likely to leave their employer because of health and safety risks not being resolved
• be less likely to feel confident about challenging discriminatory behaviour.

Since the Covid-19 crisis began, pregnant women on zero-hours contracts have faced some of the biggest economic and health risks because of the nature of their work, the sectors they work in and the lack of equal treatment for workers on these contracts.

Workers on zero-hours contracts miss out on many of the basic rights and protections that securely employed workers get such as the right to sick pay, time off for emergencies and protection from unfair dismissal. 22" Protections that are vital during a crisis like this.

• 34 per cent of workers on zero-hour contracts (who are more likely to be women) do not qualify for statutory sick pay compared to six per cent of permanent employees. 23
• 70 per cent of those too low paid to qualify for statutory sick pay are women. 24

This has left expectant mums on low-paid, zero-hours contracts with little choice between protecting their health, and that of their unborn baby, and the necessity to work.

Female-dominated sectors with the highest amounts of insecure working such as zero-hours contracts include health and social care and retail. 25 Women make up 83 per cent of those working in social care and 50 per cent of domiciliary care workers are on zero-hours or agency contracts. 26 A lack of adequate PPE and the difficulties with observing social distancing measures when caring has meant women working in the social care sector have faced some of the highest risk of exposure to Covid-19. Covid-19 related deaths of social care workers have been twice that of any other occupation. 27

As set out previously, pregnant women have a right to suspension from work if health and safety risks cannot be reduced or removed. However, this right is meaningless for zero-hours workers as their entitlement to pay is dependent on what is set out in their contract of employment. For women on zero-hours contracts, this means zero pay because zero-hours contracts offer no fixed hours of work.

This gaping hole in employment protection has created an impossible choice for pregnant women: continue to work with the health risks to themselves and their unborn baby, or stop work and lose all of their income. For many low-paid women, going without income is simply not an option.

Pregnant women on zero-hours contracts miss out on other rights and protections because access to full pregnancy and maternity-related rights depends on a woman’s employment status and length of service. 28 Women on zero-hours contracts and agency work are not equally entitled to:

• paid time off for antenatal appointments 29
• maternity or shared parental leave
• the right to request flexible working
• protection against unfair dismissal.

The lack of fixed hours of work also enables and masks discriminatory practices towards pregnant women and new mums. For instance, after telling their employer about a pregnancy, pregnant women on zero-hours contracts and agency contracts told us they have simply been let go or denied further work.

• 21 HM Government and EHRC (2016) Pregnancy and Maternity-Related Discrimination and Disadvantage: experiences of mothers
• 22" TUC (2019) Insecure Work 
• 23 TUC (2020) Sick pay for all
• 24 TUC (2020) Sick pay for all
• 25 Living Wage Foundation; NEF (2019) Living Hours: providing security of hours alongside a Living Wage
• 26 REF PENDING K Mackridge
• 27 HM Government (2020) Coronavirus related deaths by occupation England and Wales www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/causesofdeath/
• 28 gov.uk (2020) Employment status www.gov.uk/employment-status/employee
• 29 Under the Agency Workers Regulations 2010, which implemented Council Directive (EC) 2008/104 on Temporary Agency Work. One exception is that agency workers who have been in continuous employment for 12 weeks are entitled to paid time off for antenatal appointments.

We are concerned that the issues pregnant mums on zero-hours contracts are experiencing are exacerbated by other inequalities that impact women’s health and livelihoods. The disproportionate impact that Covid-19 has had on BME workers is deeply rooted in the structural inequalities and racism that impact what they earn, where they work and what happens when they catch the virus.

Women and BME workers are overrepresented in insecure forms of work and are more likely to work in sectors with higher exposure to Covid-19.

• 54 per cent of those on zero-hours contracts are women. 30
• BME workers are twice as likely as white workers to work in insecure forms of work. 31

This has had a devastating impact on some pregnant BME women’s health. While the UK’s BME population is around 13 per cent, BME women make up 55 per cent of those hospitalised while pregnant with coronavirus. 32

Recommendations

The government must take decisive action to ensure the recession does not create further inequalities for women, particularly BME women. A ban on zero-hours contracts would prevent this, creating job security and financial stability for women and stopping the employment rights abuses we are currently seeing. The government should review the pregnancy- and maternity-related rights available to workers and legislate to give greater parity between workers and employees in this regard. It should do this within the next six months.

We welcome the recent announcement that the EHRC will investigate the disproportionate impact of coronavirus on BME workers. 33 Pregnant BME women face multiple and intersecting discrimination and inequality in the workplace and urgent action is required to specifically address the underlying causes and to tackle sexism, racism and pregnancy discrimination.

We would also like to see the Government Equalities Office take an immediate review of the Gender Equality Roadmap and redraft where necessary to reflect the current context, include a clear timetable for delivery, and take particular account of the specific needs of pregnant women in insecure work and those with multiple, intersecting protected characteristics such as BME women.

• 30 Women’s Budget Group (2020) Covid-19 Briefing
• 31 TUC (2019) BME workers far more likely to be trapped in insecure work www.tuc.org.uk/news/bme-workers-far-more-likely-be-trapped-insecure-work-tuc-analysis-reveals
• 32 UKOSS (2020) Characteristics and outcomes of pregnant women hospitalised with confirmed SARS-CoV2 infection in the UK: a national cohort study using the UK Obstetric Surveillance System
• 33 EHRC (2020) Inquiry into the impact of coronavirus on ethnic minorities https://www.equalityhumanrights.com/en/our-work/news/inquiry-impact-coronavirus-ethnic-minorities