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49 N. Ir. Legal Q. 406 (1998)
Maternity Rights in the United Kingdom: Not So Special or Equal

handle is hein.journals/nilq49 and id is 416 raw text is: 406          NORTHERN IRELAND LEGAL QUARTERLY  [Vol. 49, No. 4

Maternity rights have always raised difficult issues for discrimination law,
and for employment law in particular. In the United States the debate has
focused upon whether pregnant women need special rights, with provision for
maternity leave, protection from dismissal, and maternity pay, or whether
women should be entitled to the same measure of protection as any other
employee who is temporarily incapacitated for work.' Advocates of special
treatment argue that it recognises the reality of many women's lives and breaks
away from the male norm: women are disadvantaged as a result of pregnancy
and childbirth where the standard worker, with whom they are compared, is
the healthy male with no family responsibilities. True equality can only be
achieved by explicitly recognising that in this respect women are different, and
have different needs. On the other hand, special treatment can be seen as
reinforcing stereotypes of women as primarily mothers and carers and only
marginally as workers. It also, despite attempts by advocates of special
treatment to limit special rights to a relatively short period around pregnancy
and childbirth, draws attention away from the fact that the regulation of the
workplace fails all workers with family responsibilities. Employers may also be
reluctant to employ women of childbearing age because of the perceived costs,
direct or indirect, associated with maternity rights.2 And special rights are
ultimately dependent upon the political will of the government that introduces
them. Equal treatment, by contrast, focuses upon the practical consequences
of pregnancy as involving a period when the worker, like other male and
female workers, is incapacitated for work, and advocates that pregnant women
should be treated like others similarly incapacitated. But the major problem
with the equal treatment approach is that [e]quality is an empty vessel with no
moral content of its own.4 Equal treatment is not necessarily fair, decent or
adequate treatment. It may be enough where an employer provides (or is
required by law to provide) a generous sick pay scheme, but is of little use
where an employer does not. Nor is there any comprehensive protection
against unfair dismissal because of incapacity for work. Further, even if an
employer currently provides decent sickness benefits, the equal treatment
approach does nothing to prevent employers levelling down, reducing rights
for all workers.5
I.   See, for example, Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special
Treatment Debate (1984) 13 New York University Review of Law and Social Change 325;
Finley, Transcending Equality Theory [1986] 86 Columbia Law Review 1118; Bacchi,
Pregnancy, the Law and the Meaning of Equality in Equality, Politics and Gender.
2.   At least in a system where the costs are allocated to the individual employer or employee
rather than being borne by the state.
3.   See, for example, the previous Conservative Government's determination to restrict the
universal right to maternity leave to a period of fourteen weeks.
4.   Westen, The Empty Idea of Equality (1982) 95 Harvard Law Review 537 at 542.
5.   Certainly in relation to all new employees. Even where existing employees have contractual

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