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Discrimination - Pregnant at work
RCM Midwives
15 May 2007
What do midwives know about pregnancy discrimination and legislation relating to it? A two year investigation by the Equal Opportunities Commission (EOC) into pregnancy-related discrimination at work (Equal Opportunities Commission, 2005) has concluded that almost half of all pregnant women in the UK suffer from some form of disadvantage at work. The EOC definition of pregnancy discrimination encompasses all the issues a woman in the workplace can face around childbirth, caused wholly or partly by pregnancy, or by taking maternity leave. this ranges from the loss of maternity benefits, reduced earnings or status, or being forced out of their job. it is now over 30 years since the first Sex Discrimination Act (1975) came into force, so it is disheartening to realise that this shocking situation still exists and on such a scale.
The implication are obvious both for employers and the UK economy, in which women make up nearly half the workforce and are increasingly well qualified. Unfair treatment at work makes it much less likely that they will return to their previous employment after maternity leave, or in some cases even return to work at all. Employers lose out on the skills and experience of these women and also face extra recruitment and training costs.
It is a sad fact that most women take little or no action to assert their rights - employers and employees themselves often do not understand what these rights are. As with many other negative indicators of reproductive equity, the majority of women who suffer pregnancy discrimination are young, from ethnic minorities and have low incomes. The vulnerability that many women feel around pregnancy and childbirth is also likely to increase reluctance to embark on legal action against their employers, especially when they fear that such action may jeopardise their future careers.
Midwives occupy a unique position in relation to this issue. As a predominantly female work-force, most are both providers and consumers of maternity care. As providers, one of their duties is to inform women they care for of their rights (NMC< 2005). As NHS employees, they may encounter pregnancy discrimination themselves and experience difficulty in exercising those rights.
Under the new Gender Equality Duty (GED) which came into effect in April, public sector bodies, such as the NHS are obliged to formulate guidelines introducing measures to eliminate pregnancy - and maternity - related discrimination. A pilot project was undertaken by the EOC in advance of the implementation of the GED that included some NHS Trust participants. It reported that it is 'more likely that or sensitive issues if they are following a lead set by key national or sectoral organisations, rather than having to strike out alone' (Shared Intelligence and Collins, 2005) .
Thus there is an expectation that the NHS should set a good example. A recent report by the National Audit Office (NAO) indicates that the NHS is struggling to improve the health and safety of its staff and that the gap between best and worst performing Trusts is widening (National Audit Office, 2003). Staff surveys have found that employees are often unaware of their health and safety policies. This comes as no surprise given the constant restructuring and financial strictures within the NHS, but with the national shortage of midwives touching 10 000, it is surely time for clear, fair and flexible maternity policies that will benefit midwives as both providers an consumers of these services.
Analysis of the root causes of pregnancy discrimination from the EOC investigation indicates a general lack of knowledge and understanding of maternity rights. A cursory look reveals that plenty of information on this subject is already widely available in government publications and on several websites (links are given at the end of this article). However, much of the registration is complex, particularly that relating to risk assessment and complaints.
In response to an EOC proposal, the government is now committed to giving all pregnant women a statement of their rights and responsibilities at work, with a section to give to their employer, so that both parties know where they stand from the outset. It proposed that this statement will be given to women at their first antenatal visit. However, the addition of another unfeasible burden, added to the workload of the midwife at the booking clinic, combined with yet more information overload for her client seems counter-productive.
Risk assessment of occupational hazards should be undertaken by the employer at first notification of pregnancy and during pregnancy if extra risks or stresses arise , such as exposure to hazardous chemicals, threats of violence or pregnancy complications. Another risk assessment is required on return to work postnatal that would include the provision of private, clean and safe facilities for nursing mothers who wish to express milk (Health and Safety Executive Agency, 2005).
While the Health and Safety Executive Agency (HSEA) states that failure to carry out risk assessment is discriminatory (Health and Safety Executive Agency (2005), levels of knowledge about how to go about avoiding this failure are very low, especially among small businesses. The NHS does not appear to be setting a good example either, with only 12% of Trusts including risk assessment in their employee induction training (National Audit Office, 2003). In an effort to address this, the HSEA has prepared example of model risk assessments for employers that are available on their website (see: www.hse.gov.uk) and in their guides for working mothers and health professionals (Health and Safety Executive Agency, 2005).
Legislation enabling new parents to request flexible working hours has been in force since 2003 (Employment Rights Act 1996, section 80F). While it states that the employee has a right to request flexible working hours, employers are not obliged to offer them. The NHS is theoretically well placed to offer flexible working patterns because it is such a large employer, but this must be set against financial pressures, performance targets and the need to operate a 24 hour service. Midwife shortage and attrition have persuaded a good number of NHS Trusts to become increasingly accommodating towards staff with young families, allowing them to work in term time or school hours only. The 'Kingsflex' model developed by King's College Hospital, London is a good example, see: www.kch.nhs.uk. It should be said that in an over-stretched service where it is hard to take the long view, this may cause resentment from the colleagues who have to cover for them.
While few would argue with the principles underlying the elimination of pregnancy discrimination, the question is: What can realistically be achieved? In the short term at least, the cost and organisational commitment required for successful implementation are substantial at a time when many public sector bodies, especially the NHS, are suffering from ' initiative fatigue'. Few of the bodies involved in the GED pilot project had a sectoral strategic framework to help guide their work and the health sector in particular lacks gender-disaggregated data to use an evidence base, which will make it hard to audit progress (Shared Intelligence and Collins, 2005).
The EOC proposes to develop a simple toolkit for employers in collaboration with written examples of what it expected of services. This seems to be a sensible initiative but in order to avoid the 'tick box' mentality of the racial-equality model, new policies need teeth, with a focus on outcomes capable of being evaluated and perhaps, as has been suggested, the imposition of penalties for non-compliance (Shared Intelligence and Collins, 2005). An alternative to the punitive approach might be the development of accreditation systems, such as the Tommy's charity Pregnancy Accreditation Programme (see: www.tommys.org.uk), which bring kudo to exemplary employers and make them attractive to potential employees.
The ultimate aim must be the adoption of employer policies on pregnancy and maternity leave and for these to be included in staff handbooks or on workplace intranet sites as standard practice. After all, such policies potentially apply to all women of childbearing age who represent a large proportion of the workforce, particularly in the NHS and maternity services.
From a philosophical standpoint, it is particularly involved in involved that promote equality for women in the workplace. Dawn Hillier, in her book Childbirth in the global village (2003:93) makes an important point by stating that: 'The evolutionary social aspect of midwifery is that it motivates women to extend the responsibility they take in birthing to one another, breaking out of generally a more tolerant attitude towards women who try to interface family life with their careers.' The recent success of the RCM's three - year battle to reinstate bursaries for pregnant student midwives by proving that their removal constituted sex discrimination is encouraging and will hopefully be instrumental in overcoming student poverty and attrition. The authors look forward to the day when all midwives are able to convey a positive message about the long-term benefits to both employers and society of supporting working mothers from their own happy experience as NHS employees.
Pregnancy rights at work - the legal perspective
The general lack of knowledge and understanding of maternity rights by both employers and employees is perhaps not surprising given the complexities of the law in this area. The following section is a summary of the basic health and safety protections for those who work during pregnancy.
The general obligation to consider risks
The principal protection for those who is, understandably, a health and safety measure. Even before any employee becomes pregnant, the law (Management of Health and Safety at Work Regulations, 1992) requires employers to conduct a general risk assessment, where their employees include women of child-bearing age. Since this includes women from their teens to their 40's, this means that almost every employer is required to undertake a general assessment of this nature.
This is an important protection, not least because of the particular vulnerability of the baby in early pregnancy, at a time when even the mother may not be aware that she is pregnant. If any risks are identified by the general risk assessment, the employees must be informed, not only of the risk, but of the measures proposed to reduce, remove or control this risk.
Individual risk assessment
A further risk assessment obligation is triggered when an employee advises her employer of the pregnancy. Whereas the first is a general risk assessment, this is entirely specific to the individual pregnant employee.
The employer is not obliged to undertake the specific risk assessment until written notification is received from the employee that she is pregnant. This means that it is important for the employee to do this as soon as possible. An employer is entitled to request written proof of pregnancy and midwives will often be the first port of call when this is requested.
The specific risk assessment is designed to identify whether the working conditions of the employee involve any potential risks to her health, to the health of the baby or to the breastfeeding process. Since this individual risk assessment is specific to the employee, the employer must take into account any medical advice she has received. For instance, where an employee is suffering from a pregnancy-related medical condition, such as pre-eclampsia or a history of miscarriages, she might be advised by her doctor or midwife to take more frequent rest breaks or avoid stress. In that case, her employer will be under legal obligation to make adjustments to her working patterns or conditions to address these issues.
Identifying risks to individuals
The issues and potential risks which the assessment needs to consider will vary depending on the nature of the employee's work. Employers need to examine the employee's workstation and the physical aspects of the workplace as well as her working hours and workload. This involves a comprehensive review of every feature of her work conditions, including the following:
• Mental and physical fatigue
• Hours/times of work
• Handling of loads
• Movements and postures
• Shock/vibration
• Travelling requirements
• Noise
• Extremes of temperature (hot or cold)
• Physical, chemical or biological agents that risk the health of mother or baby.
Common risks that are identified include where the employee is undertaking shift work or performing a role that is very physical.
Many employers are simply not aware of this legal obligation. The EOC's research suggested that it was being carried out in only 50% of cases. Where a midwife or a client is experiencing problems, with the nature of the work that is being undertaken during pregnancy, a key first step is to refer the employer to this obligation and to require a risk assessment to be undertaken. The advice of those medical professionals who are caring for the employee will be a vital part of that process.
Taking action to address risks
If an assessment identifies a risk, the employer must not only advise the employee at risk, but also take action to remove the risk (or minimise its effects) wherever possible. Where it is not possible to remove or minimise the risk, the employer is obliged to adjust the employee's working conditions or hours of work, if this will prevent the employee's exposure to potentially harmful health and safety consequences. However, if a sufficiently serious risk remains, the employee I entitled to be offered either suitable alternative work (on equivalent or better terms and conditions) or suspension all full pay, until the risk is eliminated.
Maternity suspension on full pay is a better alternative for a number of reasons than sick leave during pregnancy (Employment Rights Act 1996, sections 68 to 69), so midwives should consider this in cases where difficulties at work mean that the employee risks being certified sick. Pregnancy-related sick leave may affect entitlement to sick pay or to statutory maternity pay, as well as being recorded on the sickness record. Maternity suspension is not sick leave and will therefore not have these consequences. Pay and benefits must continue throughout maternity suspension as if the employee was a work.
Reviewing the risks
An employer is required to keep the individual risk assessment under review. This is because the risks to a pregnant employee who is three months pregnant may be very different to the risks when she is eight months pregnant. There is also an obligation to conduct a further assessment on the return to work or for breastfeeding workers.
Return to work
New working arrangements on the return to work are another central issue for many working mothers. Since 2003, there has been a right for all employees who are parents of children under six, or disabled children under 18, to request flexible working arrangement (Employment Rights Act 1996, section 80F). the employer must consider the request and respond, giving reasons if the request is refused. Flexible working covers any sort of changes to working arrangements and could include, for example, changing hours of work, part-time working, job-sharing, home-working, or term-time working.
Complaints
The law protects women from being treated differently at work because of their pregnancy or because they are on maternity leave (Sex Discrimination Act 1975, section 3A). This gives woman strong protection in relation to harassment or bullying by managers because of their pregnancy. It has been established in a number of cases that a failure to carry out an assessment of the risks during pregnancy may also amount to sex discrimination. In some cases. Refusing a request for new working arrangements on the return to work could amount to unlawful indirect sex discrimination. There may also be a claim if the employer does not permit the woman to return to her role (or, in some cases, an appropriate alternative0 after her maternity leave.
The prospect of pursuing a sex discrimination complaint is not one relished by many pregnant employees or those on, or returning from, maternity leave. The timing is often very difficult. Claims in relation to treatment during pregnancy or maternity leave need to be brought within three months, less one day of the treatment complained of and usually must be raised internally first. Very often women choose not to take action, either knowing that they will shortly be going on maternity leave, or simply because it is not realistic to do so while they are coping with a new baby.
Many of these issues can be resolved without the need to bring a claim, by entering into dialogue with employers. Often the problem stems from a lack of knowledge on the employer's part about women's maternity rights. Midwives can play an important role in ensuring that both they and their clients are aware of the legal protections are where further advice can be obtained if it is needed.