Views on the News: Confidentiality Clauses and Discrimination

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Few things are said to be as life-changing an experience as becoming a parent, as my (admittedly limited) focus group of family and friends will attest. Suddenly, this new child arrives, entirely dependent on its caregivers for all its needs – emotionally, physically and financially. Apparently, all the planning in the world just isn’t enough to prepare for the weeks and months of intense learning and improvising on how to care for this miniature human. Now imagine a scenario where either you or your partner, having newly given birth, have returned to work and found yourselves made compulsorily redundant. Imagine being made to feel so unwelcome that you had to leave your job, or were summarily dismissed. That’s got to be a thing of the past, hasn’t it? Surely that couldn’t happen in Britain in 2017?

Well, according to an article published by the BBC this month, that is exactly what is still happening to one in nine of 3,000 new mothers questioned as part of an investigation into maternity discrimination. So why on earth isn’t this more widely known?

Citing a case of a new mother named ‘Emma’, the BBC explains that it is fairly typical for mothers, once dismissed from their jobs, to settle the case out of court. This is without a doubt the less intimidating option for a new mother, compared with a full-scale employment tribunal. However, this “easy-option” also carries along with it the standard practice of a confidentiality clause, following a settlement which prohibits the employee from speaking out about the case. Tellingly, the BBC quotes lawyer Karen Jackson who says that many offenders employing this practice are ‘household’ names and brands, despite widely-publicised equality legislation which should protect new and expectant mothers from unfair dismissal. The reality, however, seems to be a culture in which discrimination is allowed to occur under the radar via these so-called ‘gag orders’.

As a first step, it seems fair to me that if these companies wish to dismiss new parents, they should not be allowed to hide their actions in the small print of settlement orders. If we look at the examples set by other countries; from Germany’s dismissal ban which prevents a new mother from being dismissed until four months after birth, to the extensive childcare provision in Scandinavian countries such as Finland, we can see how new parents can and should be supported when returning to work. To say that these are measures which only help new parents would be missing the point. Employers suffer when they lose talented employees. Progression towards equality also suffers when companies are still allowed to see and treat members of their workforce as liabilities simply for having a child. Whilst a universal outlawing of these ‘gag orders’ holds its own problems, surely greater transparency in regards to this particular area can only act to the common good?

A ‘gag order’ which ‘protects the individual’ from scrutiny or press exposure is clearly not an argument which withstands scrutiny when applied to these examples of maternity discrimination. Silencing those affected is hiding this increasing problem, and empowering the bad practice of the employer. This is not to say, of course, that this is applicable in all scenarios. Maintaining a degree of confidentiality, such as redacting the names of underage persons or survivors of sexual assault, are measures which offer both a protection and agency to said, anonymous person. There is, however, a discrepancy in this comparison; not releasing information to protect an individual in a traumatic case is hardly the same as hiding statistics of maternity discrimination via a confidentiality clause.

An environment, then, which prohibited the use of confidentiality clauses in certain situations and forced employers to either change their ways or risk public exposure is surely in the common interest. In the meantime, one would hope that a well directed Freedom of Information request for these ‘household names’ might lay some statistical groundwork for the scale of discrimination currently being swept under the rug.

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Third year English and History student that will forever defend autumn as the best season.

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