Maternity Discrimination

Over the past few months we have run employment law related features on government scandals. Following the swathes of cabinet and government resignations this month, we were going to play a game of ‘Constructive dismissal, or no constructive dismissal?’ in our topical news segment this month. Would you say Boris Johnson’s implied term of trust and confidence had been breached?

However, in a time when normal political etiquette has gone completely out the window, an even bigger scandal befell the government this month. This scandal has a less tenuous link to employment law and represents something more insidious than how hubristic BoJo is.

In July, it emerged that Tory whip, Julian Smith, asked MPs to break parliament conventions and vote despite being in a pairing arrangement. Pairing is when an MP cannot make a vote they would normally attend and is paired off with an MP who would vote the other way to ensure that the absence of the MP does not impact the vote. Circumstances where pairing would arise include when an MP is unable to travel, is hospitalised or suffers a bereavement.

Jo Swinson, the Liberal Democrat MP for East Dumbartonshire, had been on maternity leave since the birth of her son in June 2018. Being on maternity leave, Swinson would miss several key Brexit votes – which were tightly contested – and Conservative MP Brandon Lewis had agreed to pair with her so her absence would not impact the outcome of the vote. Lewis abstained on the first six votes but then broke his pair to vote on the final two. It has been suggested this is after pressuring by Julian Smith.

Normally you would expect this to result in the resignations of both Smith and Lewis, these are not normal times and both remain in position. However, how would such a practise be received in the wider working world?

Discrimination on the grounds of maternity/pregnancy is defined in Section 18 of the Equality Act 2010, this includes treating an employee unfavourably because of their pregnancy/maternity. Examples of unfavourable treatment include: being disciplined or put on absence management due to pregnancy related illness, being refused time off for antenatal appointments and being refused a promotion or training after your employer learns you are pregnant.

In the case of Visa International v Paul, it was held not informing employees on maternity leave of key changes to the business could amount to unfavourable treatment. In that case it was not notifying her of an available promotion, but it can also include not informing on business reorganisation or changes to workplace benefits, pay structures and pension schemes. In these circumstances employers should contact the employee so they are not cut off and disadvantaged.

Not informing an employee on maternity leave that their voting arrangement on a workplace change would be breached would probably amount unfavourable treatment. Likewise, not offering an employee on maternity leave such an arrangement could amount to unfavourable treatment. Similarly, in June, Labour MP Naz Shah had to be pushed into Parliament in a wheelchair whilst dosed on morphine because no pairing arrangement was offered to her.

A recent report by the Equality and Human Rights Commission found the UK as a whole has  an antiquated attitude on a whole host of pregnancy and maternity issues. This month has shown that these attitudes seem to stem from Parliament right down to small business. One thing governments should do is lead the way on discrimination issues. The Swinson, upskirting, gay Brexit whistleblower and Windrush scandals suggest otherwise.

Whilst the way this issue has been handled suggests unfavourable treatment, it is also a case of a failure to make reasonable adjustments. Since the Swinson pairing scandal many MPs, including Swinson herself, have pushed for proxy voting. Proxy voting would allow MPs to delegate their vote to a member of staff so that their vote could still be cast. It would not rely an any pairing and would allow any pregnant, sick or otherwise unavailable MP to still be able to vote.

The failure to make reasonable adjustments is also an act of discrimination under Section 20 of the Equality Act, although it only strictly applies to disabled employees. However, for MPs such as Grantham and Stamford’s Nick Boles, who has missed much time due to cancer treatment, a proxy voting system would be a much fairer reasonable adjustment than relying on pairing which could be violated.

Finally, this whole issue shows how Parliament hasn’t made any technological advances. Secure e-voting, postal voting and proxy voting all would allow the democratic process to be much fairer as all MPs could vote regardless of their circumstances. It would also make MPs less susceptible to the pressuring of whips.