What are your options when faced with workplace maternity and sex discrimination?
Returning to paid work from parental leave shouldn’t be as difficult as it often is for a lot of parents. According to research carried out by the Equality & Human Rights Commission, three in four working mothers say they’ve experienced pregnancy and maternity discrimination. The Commission also found that one third of employers believe that women who become pregnant and new mothers in work are ‘generally less interested in career progression’ when compared to other employees in their company.
Frighteningly, some employers’ understanding of discrimination is so poor that they don’t even recognise that what they are doing is discriminatory. It’s hard to see the incentive for employers to behave in a moral, ethical and non discriminatory way when it’s so difficult as an employee to access justice. Even when such issues are raised directly with an employer, the situation often remains unresolved. Only 1% of women who experience pregnancy or maternity discrimination raise a tribunal claim, and often when women do try to pursue justice it can seem like the system is stacked against them. The chance of an employment tribunal awarding in favour of the employee is so low, it’s pretty much 50:50; it takes a huge amount of courage, resilience, perseverance, energy and privilege to put up a fight for their legal rights, but in my experience I believe it is a fight worth having. While the legal costs to pursue a claim in an employment tribunal are prohibitively high for the majority of people, there is another route to retribution: you can self-represent. Self-representation, also known as a Litigant in Person, can be time consuming and at times overwhelming but it provides many a chance to challenge the discrimination they have suffered and no one else knows the detail of your situation more than you. Demonstrating to your employer that you are prepared to self represent can be a real wake up call.
Here are the learnings I have gained on my self-representation Employment Tribunal journey. I am not legally trained or qualified; the advice below is based on my experience of maternity and sex discrimination.
Ideally to avoid things turning sour with your employer, it’s advisable before you return from parental leave to be clear and transparent about your expectations when you return to paid work. If you are not happy about the plan for your return to paid work, it’s important to make all the relevant people aware, preferably in writing. However, even with a well planned out approach, sometimes a solution to the issues that you experience cannot be found. It is important to take action quickly. If communication with your employer isn’t good enough, make it known and escalate if necessary. Do not think of yourself as an inconvenience or believe that by not “being difficult” everything will work out. It is worth looking into an organisation called Upfront, set up by Lauren Currie OBE. Lauren is a phenomenal human being who has created a really unique business which will help change confidence for so many. Upfront offers a course that is free to those on maternity leave and, in my experience, was life changing. During parental leave you may feel nervous because you are not in the workplace; this can leave you feeling out of the loop and you may have concerns about getting a bad reputation for “being difficult”. However, asking to agree a plan for your return to paid work should not be made hard for you; your employer should prioritise you and they should not make you feel like a nuisance.
If you believe the issues you have experienced could be discriminatory, it is critical to familiarise yourself with what is and isn’t maternity and sex discrimination, and understand how to prove it. The Citizens Advice Bureau has a wealth of legal information which is free to access; ACAS is also useful, as is the charity Working Families. Sometimes we don’t realise what and how discrimination presents itself. What’s worse is that a lot of employers appear to not realise either, which is why bad behaviour often goes unnoticed! Toxic work environments can make it seem like the issue is with you. Women who are subjected to discrimination can feel gaslighted so it is important to talk to others to validate that your lived experience at work is not acceptable.
It is worth checking whether any insurance policies you have include legal cover; if you do have legal cover you can submit an application to your insurer for legal representation to support your workplace discrimination case. If you are part of a trade union you can approach them for legal representation.
Timing is very important! Do not delay in submitting a claim to the employment tribunal; the deadline is three months from the last act of discrimination and this can be done concurrently to your attempts to resolve your situation informally. There is a document that has to be submitted with your claim and it is called an ET1. I would suggest preparing this while you are trying to informally resolve things with your employer. The ET1 is critical so seek any help available to help you to complete this; detail every single bad or negative thing that has happened, in addition to every questionable comment that has been said. It’s vital to document EVERYTHING because it’s very difficult to include details you missed off the ET1 at a later date. Structure the ET1 with bullet points in chronological order; examples and templates are available online.
Something I highly recommend doing is submitting a DSAR (Data Subject Access Request) to your employer. A DSAR means your employer has to provide you with any and all data they have on you, such as emails, text messages, written notes and internal documents. Your employer legally has one month in which to respond to your request. The results of this request often make for very interesting reading and can uncover even more discrimination than you were already aware of.
Clearly an employment tribunal is not something everyone is able to undertake and you should calculate the risk for you and your family; ask yourself whether it’s worth it, but also consider the potential emotional and mental implications if you do not try to pursue justice.
If you are open to agreeing a settlement with your employer to deal with the matter quickly and avoid the stress of the tribunal process, a no win no fee solicitor could be an option. The fee charged is usually a 30% cut of any financial settlement that is agreed. It is worth flagging that a settlement agreement more often than not comes with an NDA (non-disclosure agreement), which means that there are strict limitations on your ability to share your experience with others.
I strongly advise you to do lots of research and seek out as much free legal advice as you can; contact charities like Pregnant Then Screwed, Working Families and Advice Now. The Citizens Advice Bureau and regional law centres can also be very helpful. There are also some small local charities, such as Birmingham Peoples Centre, who provide free employment law advice for employees living or working in Birmingham.
Inform yourself about other people’s experiences of discrimination because you can be sure you are not the first to go through it. Read and listen to understand from a historical point of view why we are where we are. The Motherhood Penalty book written by Joeli Brearley, the founder of Pregnant Then Screwed, is essential. There is a brilliant episode of the All Bright podcast where Anna Whitehouse, aka Mother Pukka, offers a compelling explanation of why things have got to change. Instagram also contains lots of great accounts, such as Pregnant Then Screwed, where you can read about other people's discrimination cases, especially those who self represented. There are also articles about these cases in newspapers and the actual court proceedings are freely available for you to read on the government website; I found this really helped me to get an idea of what my tribunal might be like.
Familiarise yourself with the Employment Tribunal process so you know what to expect at each stage; the government website provides very clear detail. An employment tribunal claim is process driven; each step needs to be followed to avoid potential issues further down the line. Try not to allow what can seem a complex process overwhelm you and just take it one step at a time. There will be twists and turns at various points along the way, but be assured that help is available if you seek it out.
Something else to consider if you can afford it is to get “behind the scenes” legal advice from a solicitor; this service is not always advertised but some solicitors will offer it. Rather than paying for full legal representation, you can pay for ad-hoc legal advice. It can be beneficial at certain stages when you are not sure about the best course of action. Prepare a list of all the queries and questions you have so that you can ensure you are getting answers for the main points you need clarity on. It’s worth warning you to be prepared to be told, a lot, how difficult the process is by pretty much everyone, and there will often be a lot of encouragement for you to settle out of court. While this might be right for some, it’s not right for everyone.
Being meticulous is imperative! You will need to check everything thoroughly; read and re-read every document and communication to ensure you understand. Allocating the time to do this may mean making sacrifices elsewhere in your life e.g watching your favourite TV show or meeting up with friends. Record appointments with solicitors and hearings so that you can listen back to the recording and be clear on what was said. There’s so much to take in and it’s likely you will miss critical information without a recording (the recording can only be used by you to remind yourself of the discussion). Send emails after discussions to prove the conversation happened and summarise what was said. This can feel uncomfortable and difficult to prioritise when you’re trying to do your job at the same time, but these emails may become critical evidence later. Check meeting minutes thoroughly and reply with corrections to anything that isn’t recorded correctly. Be interrogative in your approach and analyse everything so that you are clear where unintentional or intentional mistakes have been made. Document everything as quickly as possible because things can get mixed up or misremembered; Valla is a great online tool to collate and save your evidence securely. Also look for as many examples of discrimination in your evidence, especially within anything you receive back from your DSAR request. Make sure you fully understand your case and plan for how your employer might challenge your evidence. Monitor and be clear on all dates and deadlines; an employment tribunal will not tolerate missing deadlines.
Try to remain objective and calm when communications are sent on behalf of your employer. It is worth noting that throughout the tribunal process, your employer will be referred to as the respondent, and you will be known as the claimant. It’s hard when you’re self representing as you are so emotionally involved but try to remember that it’s highly unlikely that your employer will openly admit they did the wrong thing. It is in their interest to defend all their actions.
Having a support network inside and outside work is vital. Try to find a confidant in work who will attend meetings with you to take notes and act as moral support.There will be some highs and lows throughout the process and it helps to have people you can speak with to help make you feel better.
Wherever possible, the charity Pregnant Then Screwed will provide you with an employment tribunal mentor upon request; this is someone who has personally gone through an employment tribunal first hand and can provide solace and moral support, as it’s unlikely you will know that many people in your everyday life who have undertaken an employment tribunal. Try to get in place coping strategies to handle the overwhelm and anxiety you may experience. I found acupuncture alleviated a lot of my anxiety; going to the gym made me feel strong and in control when the process felt too much and talking to my friends and family helped a lot too. Find a playlist to keep you motivated; I think music is powerful and can help change your mindset. Give my playlist a listen.
Regularly tell yourself you are more than capable of self-representing and be proud of yourself for making a stand so that others need not go through what you have experienced. Remember you can do hard things.
I am more than happy to be contacted for support and guidance. You can find me on online at www.letstalkwork.co.uk and through my Instagram account: Lets.Talk.Work