From 1 April 2010 the right to paid maternity leave will be increased from 9 months to 1 year. Pregnancies may be planned accordingly. At the same time the Government is desperate to narrow the pay and opportunity gap between men and women. Discrimination law operates in such a way that employers (except brave and rich souls like Alan Sugar) are obliged to pretend that they regard pregnancy and potential pregnancy as an entirely neutral factor in deciding who to employ and promote.
A sex discrimination claim in the Employment Tribunal may be lost by an employer who admits that, all else being equal between two hypothetical applicants one of whom is pregnant, they would take the pregnancy into account when deciding which should have the job. In the business context, where managers are tasked with reducing financial and service risk, they are obliged to act as if the prospect of perhaps a year off would have no detrimental effect upon finances, efficient service or on other employees who cover. Many regard this as a nonsensical situation which can mean employers have to say things they sensibly don’t believe or be considered discriminatory.
In addition, the greater the protection the law gives, the less likely an employer is to want to take on the protected person. Unsurprisingly, the level of protection of a pregnant woman, with special rights to paid leave, leads the CEO of the Equalities and Human Rights Commission to note women being turned down for jobs and promotions because of the cost and hassle of maternity rights. So long as women have babies there is no easy answer: they need protection from unfairness and house prices mean that most need to work even if they don’t want to. Perhaps parents will get the choice for Dad to take the paid leave rights instead so that employers are not tempted to choose men rather than women. The effect of fathers having such extended rights could be very serious, especially for small businesses.
It is ironic that the very measures hard won by feminists to close the gender gap have gone so far that they are reinforcing unwillingness of employers to take on and promote women, particularly at senior levels where absence can be catastrophic. Horror stories abound; like the one about the Finance Director on prolonged maternity leave, whose temporary replacement then became pregnant. Pregnancy used to be notorious for making women weep, but the current law now appears to have that effect on strong men in the Boardroom. The debate will continue to rage. Will the pendulum swing back? Time will tell, but perhaps late summer 2009 will be the optimum time to get pregnant.
Frances Barker is Employment Partner at Blocks Employment Service
She can be contacted on 01473 343911 or email@example.com