By Carla Fraser
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Maternity Leave – Issues with Equality Law and the Need for Reform

Equality law in Northern Ireland is distinct from the rest of the UK as the implementation of anti-discrimination legislation is devolved to the Northern Ireland Assembly. The UK government have harmonised their anti-discrimination laws under one consolidated piece of legislation, the Equality Act 2010. Conversely, the Northern Ireland Assembly have adopted a raft of legislation which deals with separate areas of equality and discrimination.

Anti-discrimination legislation has also been harmonised under the Equal Status Acts in the Republic of Ireland.

The effect of harmonisation is that it provides legal certainty and an overall simplification of anti-discrimination law. At present, the approach adopted in Northern Ireland is archaic and continues to produce unfair treatment and outcomes for individuals; particularly in relation to the rights of pregnant women in the workplace.

Pregnancy and Maternity – The Law

The two key pieces of legislation which govern this area in Northern Ireland are the Sex Discrimination (NI) Order 1976 and the Maternity and Parental Leave Regulations (NI) 1999. 

This legislation sets out the basic requirements of employers in relation to equal pay and parental leave. While the legislation is sufficiently clear on the amount of time permitted for maternity leave and the general obligations of employers, there are significant shortcomings when compared with the UK legislation.

An investigation carried out by the Northern Ireland Equality Commission found significant issues in the areas of direct and indirect discrimination against pregnant women. 50% of the Women who contributed to the survey felt that their career opportunities had been negatively affected by their maternity leave. Some of the examples of unfair treatment included termination of employment, changing of roles and losing out on salary increases.

The Equality Act 2010 sets out the law on maternity and pregnancy leave in much more simplistic terms. This has the benefit of enabling lay people such as employees and employers to easily navigate the relevant law in this area. In addition, the Equality Act 2010 offers greater protection to women who take maternity leave.

For example, the Equality Act 2010 creates an express or implied ‘maternity clause’ into a pregnant employee’s  contract of employment which states that any pay increase she receives or would have received if she had not been on leave, must be taken in to account when calculating her maternity related pay. In addition, any bonus that the employee would have been entitled to must be paid at the time when she would have received it, had she not been on maternity leave. 

Legislative Reform

There is a compelling argument for anti-discrimination law in Northern Ireland to be harmonised under one consolidated piece of legislation. The current issues with pregnancy and maternity discrimination are a symptom of the confused and outdated legislation which is extremely difficult for both employers and employees to navigate.

The United Nations Committee on the Elimination of Discrimination Against Women conducted an examination of the treatment of women in the UK in 2008. The report raised a number of issues in relation to discrimination and recommended the development of a single equality legislation. The Equality Act 2010 was introduced two years later and has been highly effective in protecting the rights of women, particularly in relation to maternity leave.

The Northern Ireland Assembly have not updated or harmonised their equality legislation and have therefore failed to keep pace with developments in other jurisdictions.

The implementation of a single harmonised equality bill in Northern Ireland is necessary to provide uniform protection to all citizens and to reduce the disparity in the law with other parts of the UK and Ireland.

It is particularly important that the issue of pregnancy and maternity rights are addressed and brought in to line with the standards set by the Equality Act 2010. 

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