Getting off the mommy track: an international model law solution to the global maternity discrimination crisis.

• Author: Rickard, Caraline
• Position: III. Analysis A. Domestic Efforts 2. The United Kingdom through V. Conclusion, with footnotes, p. 1465-1490

2. The United Kingdom

   The United Kingdom offers a second, intermediate level of maternity protection in the comprehensive Maternity and Parental Leave Regulations of 1999 (UK Regulations). (171) Employers are required to provide up to fifty-two weeks of leave, with the first six weeks paid at 90 percent, a flat rate paid for weeks seven through thirty-nine, and no pay for weeks forty through fifty-two. (172) Employers make these payments, with public funds providing the employer with 92 percent reimbursement. (173) In accordance with Regulation 8, new mothers are required to take at least two weeks of compulsory leave. (174) These two weeks begin on the day the child is born. (175) Moreover, Regulation 14 allows all male employees up to thirteen weeks of paid parental leave if he "has, or expects to have, responsibility for a child." (176) Regulation 18 additionally provides a "right to return." (177) For employees who take leave of four weeks or less, this is the right to return to their same job in the same position as they left. (178) For those who take more than four weeks, employees are entitled to return to the same position as prior to their leave, "or, if it is not reasonably practicable for the employer, to another job which is both suitable ... and appropriate ... in the circumstances." (179) This includes a right to "her seniority, pension rights and similar rights as they would have been" and "otherwise on terms and conditions not less favourable than those which would have been applicable to her had she not been absent from work." (180) Regulation 19 contains specific protection for adverse actions by employers due to the fact that an employee is pregnant, has given birth, or has sought to take maternity leave, parental leave, or time off to care for a child. (181) Regulation 20 also offers specific protection for unfair dismissal on the basis of pregnancy, leave, and childbirth, including added requirements that employers must make specific showings to support claims of redundancy. (182)

   Despite these protections, according to figures reported from the House of Commons library, on average, nearly "14 percent of the 340,000 women who take maternity leave ... find their [jobs] under threat when they try to return." (183) Nearly half of the women reported that their job assignments and expectations had changed since returning from maternity leave, and one in twenty women reported she had taken on a different role within her company. (184) The report also showed that, "[i]n 2005, an estimated 30,000 women ... lost their jobs as a result of pregnancy discrimination," a staggering "8 [percent] of all pregnant women in the workforce." (185) In addition, the United Kingdom, like the United States, has a demonstrable "motherhood penalty," or pay gap between mothers and non-mothers. According to numbers from the UK Office for National Statistics, in 2009, single women surprisingly earned slightly more than single men, with a pay gap of -1.1 percent. (186) Women who were married or cohabiting, on the other hand, suffered from a 14.5 percent pay gap with men in comparable positions. (187) When the numbers were broken out per child, the gap widened by approximately 5 to 7 percent per child, beginning with an 8 percent pay gap for women with no children and ending with a huge 35.5 percent pay gap for women with four children. (188) Thus, despite the UK Regulations' assurances that women will return from maternity leave "on terms ... not less favourable,"189 women are seeing their pay slip with each child. (190)

   These discriminatory practices continue because the UK Regulations offer absolute job protection only to women who take four weeks or less of maternity leave; (191) they offer no absolute protection to co-parents who take parental leave or women who take more than four weeks. (192) Additionally, Regulation 20's unfair dismissal protections do not apply to employers with five or fewer employees if it is "not reasonably practicable" for the employer to allow the employee to return. (193) Given that absolute protection is severely limited to only four weeks when new mothers are entitled to fifty-two, these loopholes are large enough to allow for significant abuse. (194) In addition to these enforcement issues, the UK Regulations, like the U.S. statutes, offer no provision for childcare. (195)

   Perhaps in recognition of these shortcomings, during the pendency of this Note, Parliament enacted the Children and Families Act of 2014. In addition to reforming aspects of the family justice system, adoption process, and special needs education, the Act also included reforms to the parental leave system. (196) Most significantly, Part 7 of the Act creates a new right to shared paid parental leave for all eligible parents beginning in April 2015. (197) Under the new Act, mothers continue to be eligible for leave as before. (198) However, if mothers decide not to take their entire fifty-two week allowance, fathers and co-parents have a right to share in the remaining leave for up to fifty weeks of leave and thirty-seven weeks of pay. (199) This is a potential increase over the UK Regulations' provision of up to thirteen weeks for new fathers. (200) The Act also provides a new right for fathers and co-parents (including same-sex partners) and intended parents (in the case of surrogacy) to take unpaid time off work to attend prenatal appointments with pregnant women beginning in October 2014. (201) Finally, the Act closes some of the loopholes that allowed employers to continue discriminatory policies by expanding the right to a flexible work schedule to all caregivers and providing that employers have a duty to "deal with the application in a reasonable manner." (202)

   The passage of the Children and Families Act demonstrates that the time is ripe for new parental leave protections. (203) It also enacted many of the reforms advocated in the proposed Global Maternity Protection Act, detailed in Part IV, including the equal provision of leave benefits to mothers and co-parents and decreased employer discretion in making decisions related to leave benefits. Thus, while the Children and Families Act does not solve all of the issues with the UK's maternity protection regime, it is a step forward.

3. Sweden

   Sweden has perhaps the world's most progressive maternity leave system. (204) The Parental Leave Act of 1995 (Act) is unique in that it provides for five different types of paid parental leave. (205) Under the second type of leave, parents are entitled to up to 480 full days of paid parental leave. (206) Of those 480 days, sixty days are reserved for the co-parent. (207) Parents are compensated at a rate of 80 percent of their original salary for the first 390 days of leave, and then compensated at a flat fee for the remaining ninety days. (208) All expenses are paid by social security. (209) Additionally, parents can choose to take full leave for a shorter period of time, (210) reduce their normal working hours in order to extend their leave benefits until the child is up to eight years old, (211) or take temporary leave with temporary benefits for short periods of time. (212) The Act mandates two weeks of compulsory leave (213) and entitles every woman to a minimum of seven weeks of leave pre-delivery and seven weeks post-delivery. (214) These benefits are extended beyond married mothers and fathers to legal custodians and those who have "taken a child for permanent care and fosterage." (215)

   Sections 16 and 17, under the heading "Prohibition of Disfavourable Treatment," offer discrimination protections for employees who take parental leave under the Act. (216) Section 16 provides that "employers may not disfavor a job applicant or an employee for reasons related to parental leave" when deciding an employment issue, considering promotions, implementing vocational training or counseling, determining pay or terms of employment, managing and distributing work, or deciding terminations. (217) However, Section 16 contains a potentially wide exception: "[T]his prohibition does not apply if the different terms and conditions or different treatment are a necessary consequence of the leave." (218) Section 17, on the other hand, gives a broad and absolute protection from termination: "If an employee is given notice of termination or is summarily dismissed solely for reasons related to parental leave under this Act, the notice of termination or summarily dismissal shall be declared invalid, if the employee so requests." (219)

   The Act has been widely successful in addressing maternity issues in Sweden. Women's labor force participation rates in Sweden are much higher than either the United States or United Kingdom: in 2005, Sweden female workforce participation rate was the highest of any OECD country at 84.6 percent of women age twenty-five to forty-four (those most likely to have young children), compared to approximately 75 percent and 74 percent, respectively, for the United States and UK over the same period. (220) The overall gender pay gap in Sweden for full-time employees (not adjusted for familial status) is lower than either the United States or UK, at approximately 15 percent versus approximately 22 percent for the United States and 20 percent for the UK. (221) Some commentators have stated that, unlike the United States and UK, Sweden has no motherhood penalty. (222) However, 2011 OECD numbers show that the gender pay gap for single women in Sweden is higher than in either the United States or UK, at 14 percent, with an additional 7 percent motherhood penalty for women with at least one child. (223) According to the OECD, women in Sweden are also less represented in senior management than women in either the United States or UK. (224)

   Commentators generally agree that Sweden's program has been successful in maintaining women's labor market participation rate, something other countries have been unable to...