It is also interesting to note that the UK-wide gender pay gap is very narrow (less than 5 per cent) for employees aged 39 and under. At some younger ages the gender pay gap is negative – that is, women are better paid than their male counterparts.
However, the gender pay gap widens significantly, to more than 10 per cent, after employees turn 40-years-old. The UK gender pay gap is an average and many factors contribute towards the data, however, it is not an overreach to suggest that dismissal and discrimination following maternity leave are contributory factors.
The weakness in the legal system
In some ways this discrimination is not surprising. No rational employer would suggest that a company would be worse off by hiring an employee from a minority ethnic background. Only a chauvinist would seriously try to justify discrimination on the basis of sex. However, maternity leave is often genuinely expensive and disruptive to companies.
Hiring maternity cover, keeping a role open for a year while also (in some cases) paying enhanced maternity leave comes with a real cost. While this does not justify sharp practice by employers, it perhaps explains the need for enhanced protection.
One issue is the fact that unfair dismissal claims are based on financial loss (which in practice means loss of earnings). In simple terms, if it takes an employee six months to find new work, compensation awarded by a tribunal will be six months’ pay.
For much of her maternity leave, a woman will only receive statutory maternity pay (currently £172.48 per week) and any compensation is based on actual earnings.
If a woman is dismissed before her maternity leave begins but finds another job before her maternity leave was due to end (which is very likely), then the employer is not going to face a serious financial penalty. This is a problem.
If a dismissal is found to be motivated by pregnancy (which is hard to prove), then the mother may also receive an award for injury to feelings and could expect to claim around £10,000 to £30,000.
However, a low-earning employee will struggle to afford the legal representation that is often required to pursue an effective discrimination claim.
For high earners, the potential injury to feelings award might not be considered enough to be worth risking their wellbeing and reputation by going to a public hearing.
Perhaps the greatest problem is the fact that the protected period ends as soon as maternity leave ends. If a decision is made during the protected period but is actioned afterwards then the protected period applies to that action.
