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Global HR Lawyers

‘Living in the dark ages’ - pregnancy and maternity discrimination at interview

21 February 2018

Fresh out of my first year at university and applying for a summer job at a pub, I was slightly taken aback when the interviewer asked whether I had children, in a tone that implied “no” was the right answer… Back then, with no children, I simply answered the question - but it made me wonder.

That was just eight years ago, so it was no great surprise to see the recent headline figures from the Equality and Human Rights Commission (“EHRC”) indicating that almost half of employers (46%) consider it reasonable to ask women during the recruitment process if they have young children. The EHRC have accused British employers of “living in the dark ages” when it comes to hiring women and having “worrying attitudes” towards unlawful behaviour.

Other notable statistics included 59% of the 1,106 senior decision-makers surveyed stating that a woman should have to disclose if she is pregnant during the interview process, and a third of those working in the private sector thinking it acceptable to ask a woman about her future reproductive plans.

The website Pregnant Then Screwed released an anecdotal response to the EHRC research, citing an example from one woman who was “grilled by the CEO about how I would manage a senior role with kids and a husband to take care of”.

What does the law say?

The position under the Equality Act 2010 is clear. Sex is one of the protected characteristics under the Act, as are pregnancy/maternity and marriage/civil partnership status. That means it is unlawful to discriminate, whether directly or indirectly, on any of those grounds.

So, for instance, asking questions such as whether a woman has children, what her childcare arrangements are or whether or not she plans to have children in future could potentially lead to a claim of direct sex discrimination. Failing to offer a position to a candidate purely because she is pregnant would be less favourable treatment because of her pregnancy, and therefore direct discrimination.

The EHRC’s Code of Practice on Employment advises that where candidates volunteer information relating to any protected characteristic, the interviewer should take particular care to ensure they are not influenced by that information. It also makes clear that a woman is under no obligation to declare a pregnancy at interview and, even if the potential employer is aware of this, it should not be used in deciding whether or not she is going to be recruited.

Notwithstanding all this, discrimination claims of the type I’m describing are actually few and far between. Of course interview panels may discriminate against candidates, whether consciously or subconsciously, especially if they have not received training on how to recognise their own bias. But it’s extremely rare for a candidate to be told she has not been selected because she is recently married and the company is afraid she may start a family in the near future, or because she is of child-bearing age.

Proving discrimination at this stage in the employment process is therefore extremely difficult as there will rarely be any tangible evidence to support the candidate’s belief or suspicion that the recruiters have discriminated against her.

Discrimination law has been in place for decades, yet the enduring experience of discrimination against women during recruitment inevitably suggests it is a problem that cannot be solved by statute alone. Employer attitudes and stereotypical beliefs need to shift across the board, if the talents of women of childbearing age and those with children are going to be fully realised.

The EHRC is inviting companies to register for free membership of its Working Forward initiative, which provides support in tackling pregnancy and maternity discrimination.

Eight years ago, I got that summer job - alongside a male friend who wasn’t asked the same question at interview. I still wonder what would have happened had my answer been different.

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