Discrimination Against Pregnant Women and Mothers in the Workplace
By Alexander Ulrich and Russell Brimelow
Published on September 23, 2016
The UK Women and Equalities Select Committee (WEC) has recently highlighted a “shocking” increase in workplace pregnancy discrimination – affecting both pregnant women and women returning from maternity leave (Women and Equalities Committee Pregnancy and maternity discrimination, HC 2016-17, 90). Apparently the number of expectant and new mothers forced to leave their jobs has almost doubled since 2005. Citizens Advice has also reported a nearly 60% rise in the number of women seeking advice about maternity leave issues in the last year.
Although such discrimination is already unlawful, (principally under the Equality Act 2010 and Council directive (2006/54/EC) which has been stated to have been fully implemented within Great Britain – HC Deb 10 November 2008 vol 705 col WS29), the WEC has called for increased German-style employment protection rights which go much further to protect women in these circumstances. Stating that UK Government’s approach had so far lacked “urgency and bite”, the Committee is has called for a big reduction in the Tribunal fee for making claims, a longer period in which to make claims and increased protection for casual, agency and zero-hours workers.
In Germany, from the beginning of pregnancy until 4 months following childbirth, employers can only dismiss in very rare circumstances and need government approval to do so. The WEC is calling for that here (but for longer – for 6 months after the return to work).
It is worth looking at the German system in detail – with a comparison to the UK.
In Germany, pregnant women enjoy special protection against all kinds of dismissal – terminations with or without cause, terminations for person-related, conduct or operational reasons. The employer is not allowed to dismiss pregnant women during the pregnancy unless the competent public authorities have granted their prior consent. This protection continues until four months after the pregnant woman has given birth. In practise, only in very exceptional cases, such as the closure of the entire operation or in case of gross misconduct, the competent authority will grant consent to the dismissal. Any termination without such consent is invalid.
Where the termination is held invalid by the labour courts, the employer is obliged to continue employment after the intended termination day and the female employee has to be reinstated. If a pregnant woman/mother stopped working after the envisaged termination date, the employer will be obliged to reimburse the employee for the remuneration, which would have been due between the termination date and the date of the court’s decision.
The position in the UK is much less protective. The law states that pregnant women and those returning from maternity leave must not be treated less favourably on account of their pregnancy or recent childbirth, but employers may still dismiss them for other reasons. In practice, it is quite easy for employers to come up with a plausible redundancy scenario. And there is no need to get any kind of official approval from any public authority to do this.
Also in Germany, according to the Maternity Protection Act pregnant women are not obliged to work at all in the last six weeks prior to the expected date of birth, unless they explicitly declare their willingness to do so. During a period of eight weeks following the birth, the mother is prohibited from working. In the UK, women work up to the start of the maternity leave period (and this could well be right up to the birth date itself!) and have only a two week period after childbirth when any work is banned. In practice though, most women take the year’s maternity leave, plus accrued holiday, that UK law allows.
In Germany, in the periods above where women are not obliged to work, women are entitled to maternity pay equivalent to their pay in the last three months before the beginning of the maternity leave. The employer has to take into account salary, bonus payments, commission, overtime pay and extra pay. For a period of eight to twelve weeks after giving birth women are not permitted to perform tasks which are considered risky or harmful to the health or safety of the mother or child. The UK has similar health and safety provisions with no limit on time.
Finally, according to German law, both female and male employees are entitled to take parental leave up to the third birthday of each child of the employee. Parental leave can be taken by the mother or the father separately or together. An employee who wants to claim parental leave needs to inform the employer at least seven weeks prior to the beginning of the parental leave about the date and duration of the leave. The employer is not entitled to reject the employee’s claim for parental leave. During this parental leave the employee is entitled to a public allowance of 67 % of the last net income up to an amount of EUR 1,800.00 per month for a period of 12 months. If the other parent is also taking parental leave for at least two months the public allowance is paid for two further months. The employer cannot dismiss an employee who has requested parental leave unless he obtains the prior consent of the competent authority. This special protection against dismissals starts with the request for a parental leave and continues during the leave itself. Conversely in the UK we now have the right to take shared parental leave during the old maternity leave period, and there is additionally a right to parental leave for up to 18 weeks (unpaid) per child thereafter.
Alexander Ulrich is a partner at law firm Kliemt & Vollstädt, Germany.
Russell Brimelow, is a partner at law firm Lewis Silkin LLP, UK. Both firms are members of global HR and employment law firm alliance Ius Laboris.
Article picture: bookdragon via Pixabay