Increase in maternity and paternity discrimination cases

A survey of employment lawyers shows a big increase in claims for maternity and paternity discrimination.

Gavel with employment written on it, representing employment law


Seventy per cent of employment law experts have seen an increase in women claiming they were fired when on maternity leave, the use of ‘gagging orders’ following pregnancy- and maternity-related disputes and an increase in men claiming harassment by their employer for taking paternity leave.

The survey of 104 lawyers by Direct Line Life Insurance shows that, despite parents being protected from unfair treatment during pregnancy and maternity or paternity leave by The Equality Act 2010, over the last 12 months, more than two thirds (71 per cent) of employment law professionals reported an increase in disputes where employees’ working hours were reduced when they returned from maternity leave.

The survey showed employers are also increasingly turning to so-called ‘gagging orders’ to ensure confidentiality when settling pregnancy- and maternity-related discrimination claims.  In the last 12 months, 84 per cent of employment law experts say they have seen an increase in the number of Non-Disclosure Agreements (NDAs) used by employers following pregnancy and maternity-related disputes.

Legal professionals report a rise in the number of cases where women claim they were demoted upon returning to work following maternity leave, with 64 per cent saying these claims have increased in the last 12 months.  The law states those returning to work after Ordinary Maternity Leave (the first 26 weeks of maternity leave) have the right to return to their old job on their old terms and conditions.  If a parent takes additional maternity leave (a second six months of leave) they have the right to return to their old job on their existing terms and conditions unless it is “not reasonably practicable”, in which case they must be offered a suitable alternative job with similar terms and conditions.

Almost two thirds (63 per cent) of employment law experts have also seen an increase in claims from those made redundant while on maternity leave.

The survey shows that there has also been an increase in claims made by fathers in the last year.  There has been a 63 per cent increase in cases of fathers claiming they have been demoted upon returning to work and a 61 per cent increase in disputes related to promotions while the claimant was on paternity leave.

There has also been an increase in men claiming unfair dismissal (59 per cent) and pay disputes (58 per cent) while on paternity leave.  Fathers are also claiming employer harassment for taking paternity leave despite it being a legal right, with over half (56 per cent) of legal experts seeing an increase in these disputes in the last 12 months.

Possible reasons

Possible reasons for the rise in claims are thought to include greater awareness of the issues as a result of more of a media spotlight on the issue and the abolition of employment tribunal fees in 2017. Pregnancy and maternity discrimination claims fell by 45% as a result of fees being introduced in 2013.

Kate Palmer, Director of Advisory at HR experts Peninsula, said: “Given the scope of Direct Line’s study, it’s tricky to attribute their findings to any one particular reason. However, in the present climate, the increase in disputes could have been influenced by several factors.

“The increase in overall claims certainly matches up with trends we have seen since tribunal fees were removed in July 2017. At the time, tribunal fees were considered to be a ‘barrier to justice’ that had an adverse impact on women. Therefore it is unsurprising to see that the amount of claims involving family friendly rights, and specifically maternity discrimination, has grown during this time.

“Increase in public awareness is perhaps another reason for the growth, as it seems that hardly a week goes by without news of another employment dispute hitting the national headlines. This is perhaps best represented by the increase of claims involving the use of gagging clauses over the past 12 months, a period in which they featured heavily in a number of well-publicised proceedings, including those against retail tycoon Sir Phillip Green.

“There has also appeared to have been something of a step-change in employee attitudes with many staff placing an additional emphasis on a positive work life balance, which for many includes managing their work and family commitments equally. This could mean that staff are now more inclined then they would have been previously to ensure they make use of their statutory entitlements and raise claims against employers whose actions put this balance in jeopardy.

“Employers have traditionally found themselves in the advantageous position of being more knowledgeable about worker’s rights than the individuals they employ. However, recent developments threaten to turn this dynamic on its head. Speaking on behalf of employers, it is clear that they may need to develop a better understanding of employment rights, whilst also putting additional resources into mediation whenever workplace issues occur.”

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