Is chipping away at transparency the best way to deal with maternity leave discrimination?

As I congratulated my colleague on her second pregnancy, I was inwardly mourning the imminent loss of momentum gained within our fledging team.

Office teams and the working culture can be delicate beasts, a dynamic easily skewed by change and disruption. In the few months since returning from her first maternity leave, a slow-burning bond had grown among our small group, as it transitioned into a tight unit that was more productive – a measure of progress and team spirit that I knew would be curbed by another cycle of temporary cover.

I was right – it was. Though in the wake of a new ruling on pregnancy discrimination this month, I’m reminded that things could have been far worse. Crucially, we knew when our colleague was due back, something that is always helpful when trying to plan and organise workload and forthcoming projects. Now, employers may be denied this basic information, after a tribunal ruled it discriminatory to ask a pregnant woman prior to her taking maternity leave if she would return to work.

It found in favour of Laura Duffy, an assistant at Barnet, Enfield & Haringey Mental Health NHS Trust in north London, who sued her employer after he nodded towards her pregnant stomach and questioned her “future plans”. The tribunal ruled that this comment was based on a “stereotypical assumption about new mothers not returning to work” and was therefore unlawful.

No doubt in the interests of good employee relations and courtesy, most women will still be upfront about their intentions, but the fact remains they don’t have to be, and are allowed to enjoy their leave and hedge their bets free of the looming deadline of a return date. Perhaps they’ll be better placed to assess their situation once the baby is born, but it does leave the business on the backfoot and everyone else hanging.

Certainty and consistency are prized commodities in the workplace, and for good reason: they are like gold dust in an increasingly transient space given to flux and change. Organising cover will be complicated by a lack of clarity over whether the solution is to be stop-gap, or something longer term, worthy of deeper investment. Should the role be properly advertised with the view to acquiring fresh talent, or will a more makeshift approach suffice, such as seconding an existing employee from a synergetic function elsewhere in the business?

Furthermore, doesn’t the wider team, used to working closely with an individual for some time, deserve to know whether they can expect to see them again? Say there is friction, or simply mutual indifference, between the remaining colleagues and the person covering the leave, there’s comfort in knowing that the situation has an expiry date, and that at some point the preferred order will resume. Conversely, if the person covering is more likely to be a more permanent presence, people will benefit from knowing as soon as possible so that they are able to consolidate that relationship (and employ a little diplomacy).

Clearly, there’s a balance to strike between respecting the privacy and rights of pregnant employees and minimising the impact of their absence on the business, but once again, the response seems off-kilter – a defining theme when it comes to how the subject of female fertility has fared in the workplace. In fact, keeping employers and colleagues in the dark on these matters feels like payback – an attempt to counter some of the more excessive, heavy-handed intrusiveness of a working culture that once deemed it acceptable to interrogate young female candidates over their family plans during job interviews.

And while the question may no longer be as ubiquitous as “Where do you see yourself in five years’ time?”, it isn’t quite the anachronism, on a par with desk-based smoking and fax machines, that people might assume. Even though it’s illegal for employers to ask about such things, a 2018 survey of 1,106 senior decision-makers by the Equality and Human Rights Commission (EHRC) on behalf of YouGov found that a third (36 per cent) of private sector employers thought it fine to ask prospective female employees about their plans to have (or not have) children. Almost half of these employers (46 per cent) also thought it reasonable to ask women, during interviews, whether or not they have young children.

I’ve encountered it once with a male hiring manager at a small communications agency, tying himself in knots trying to gauge my familial status before finally asking if I had ‘any young dependents or was thinking of it’. I didn’t, and don’t – but the question irked because it felt inappropriate, shoehorned into a conversation that I thought was going in a very different direction. Afterwards, the rather depressing realisation dawned that for all the talk around my professional skills, experience and achievements, in that instance, at least, the focus was squarely on my womb, betraying the employer’s obvious anxieties around potential procreation.

To me, though, this scenario – and the expectation of information – differs hugely from questioning a woman’s intentions post maternity leave. Crucially, at an interview you’re not an employee, you have no ties to the business, and your absence has no impact on the existing teams or the running of operations. Therefore, the matter feels intrusive and irrelevant. However, by the time an employee is about to go on maternity leave, the level of involvement is clearly different. Their absence, its duration, and their potential return (or, indeed, continued absence) will affect others, and the smooth running of things, which means there are practicalities to consider and preparations to be made. This merits a definitive answer on their plans.

A 2019 study, titled Discrimination in hiring based on potential and realised fertility, by the University of Oxford and the University of Bern, highlighted the extent of employer anxiety around employee pregnancy. The experiment involved sending 9,000 CVs and applications in response to job vacancies across Germany, Switzerland and Austria, containing varying information on marriage, presence of children and age of children, to assess how this influenced the call-back rate for interviews. Those who were perceived to be at particular “risk” of becoming pregnant – namely, young women who were married without children – were least likely to get a positive response compared with single women.

Anxiety, assumptions and discrimination over maternity are undeniably real and prevalent, but is chipping away at some of the transparency over these matters the best way to allay it?