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Equality Act - Pregnancy / Maternity Discrimination

(84 Posts)
OneTwoOrThree Thu 04-Oct-12 15:05:38

Looking for some help, please....

I believe that I have been discriminated against by my mortgage provider on grounds of pregnancy / maternity. I am in the midst of their complaints process and will escalate to the Financial Ombudsman if necessary.

In short, the bank are refusing to lend me additional funds purely because my 'maternity pay' does not meet their lending criteria however if I was receiving my normal salary they would be happy to lend. Please shout if you disagree that this is maternity discrimination.

Anyway, the reason for my post is that I'm not sure what to do next. I could get the funds at a similar rate from another bank, so why fight my current lender? What do I gain? (Apart from, perhaps, influencing a change in policy so others don't suffer the same discrimination).

OneTwoOrThree Thu 04-Oct-12 15:07:44

Sorry (on phone so struggling to type this), but I'd also like to know what the consequences are for my bank if they are deemed to have discriminated on the grounds of maternity? Would there be any personal gain to me in pursuing this car (aside from satisfaction!)

TBH, I don't agree that this is maternity discrimination. All they are interested in is whether you have enough money to make the repayments. And if your maternity pay is such that you don't, then they are within their rights to refuse. Same as they would if you had a low paid job and wanted tI borrow lots.

MrsWobble Thu 04-Oct-12 15:13:45

i'll be surprised if you win this. while any mortgage applicant can lose their income at some point in the future, I suspect that the statistical chance of that happening to women on maternity leave is much higher than for the general population at large, because they choose not to return to work. your mortgage lender will factor this in to their lending criteria. so whilst it is discrimination i would suspect it's justifiable - in the same way that insurance companies can discriminate when setting premiums for example.

i'd be interested to hear if anyone has experience of a different outcome. Sorry, it's probably not what you want to hear. But also bear in mind that no lender is ever obliged to lend to any borrower.

Is the bank's issue that you might not return to work from maternity leave so potentially would not have ongoing income? I guess they'd say the same if you were on long term sick leave, which would be the nearest male equivalent.

What proof do you have that you will return to work before your maternity pays tails off?

OneTwoOrThree Thu 04-Oct-12 16:11:12

Thank you all for such quick replies - I love MN!

Without wanting to be ungrateful, or sound cheeky - can I ask if any of you are legal experts / professionals? The reason I ask is that I have done some significant research on the Equality Act, and have learnt that (and I quote...):

4.34: The Act protects women from discrimination because of their pregnancy and maternity in the provision of services.
4.38: The unfavourable treatment will be pregnancy and maternity discrimination if the woman would not have received the treatment, but for the fact that she is or has been pregnant.
4.40 (What does 'because of' mean? (ref 4.34)): Pregnancy and maternity needs to be a cause of the unfavourable treatment, but does not need to be the only or even the main cause. Example: A woman applies for a mortgage and lets slip that she is pregnant. She is subsequently refused a mortgage. She asks why and is told that the lender is concerned she may not be able to maintain repayments. Although the reason given for the refusal is her inability to maintain repayments, the cause of that assessment is her pregnancy and the refusal is likely to be pregnancy discrimination.
4.43: Another way to identify whether pregnancy and maternity is a cause of the unfavourable treatment is to ask 'but for the woman being pregnant of recently having given birth, would she have been treated in that way?'

My interpretation of this, in conjunction with my conversations with the bank are that they ARE discriminating against me. I do understand why some of you may think their 'discrimination' is sensible etc, but to the letter of the law it feels very much like discrimination.

I guess my main question is (assuming that the bank are discriminating against me) - what do I gain by fighting my corner? What are the consequences for the bank if they are found to have discriminated, and what good reasons are there for me to put all my energy into this fight rather than move to a more sympathetic lender?

Thanks again

Given that what has happened to you is pretty much what is in the case study, you could be on to something. Certainly prior to the passing of the Equality Act what you describe was pretty much bog standard behaviour from mortgage companies so it's possible yours simply hasn't caught up.

Why don't you try contacting the Guardian's consumer rights column and see if they'll take up your case? This sort of thing would be right up their street.

olgaga Thu 04-Oct-12 16:25:09

But from what you are saying, their decision relates to whether or not you meet the criteria in their Affordability Calculator. Presumably they will say any applicant who failed to meet the criteria would also be refused additional funds - regardless of the reason for that failure - or indeed their sex.

In other words, pregnancy or maternity is not the reason for the refusal. Low income is the reason.

OneTwo no I'm not legally qualified but I think you're asking yourself the wrong questions. You are being turned down for a mortgage because of a lack of provable long term income. Would this happen if you were a male? Yes. Would this have happened if you were a non-pregnant female on sick leave? Yes.

Sorry but I think you're determined to prove a case where there isn't one.

procrastinor Thu 04-Oct-12 16:46:23

I disagree that this is discriminatory. You fail to meet their criteria. Your income is not above their threshold. I would imagine that if you received a generous maternity package that paid you enough to be above that threshold then they wouldn't care two hoots that you were pregnant. However, if they had said that you met criteria but were risky due to possible non return to work or losing your job that would be discriminatory.

What you are actually asking them to do is to positively discriminate in your favour on the basis of your pregnancy/maternity leave. That is, that despite failing to meet their affordability criteria, you should be exempted on the basis of possible future earnings once you return to work. I imagine their policy is black and white - you meet criteria at the time of application or not.

YoullLaughAboutItOneDay Thu 04-Oct-12 16:56:14

I am legally trained, and though not in provision of services, I worked in employment, which obviously uses different section of the same act.

I think you could struggle TBH.

If they were refusing because you might not return to work, that would be discrimination.

But what they are saying is that your income at present is such that they do not want to increase your lending (I note that this isn't them withdrawing a product you have, it's a refusal to extend). This isn't like the example- where the bank is jumping to a conclusion based on no information and simply because of the pregnancy. This is a concrete 'we are not happy that this would be a good idea on your current income'.

Why do you want to extend by the way - if you were on your full salary would you meet their repayment criteria? Presumably once you return to work, you will do so again?

Also, if you bring a claim in employment, you get compensation for actual financial losses, plus a bit for injury to feelings. That element in a comparable employment case (if you won) could easily just be a few hundred or couple of thousand pounds. I would hazard a guess a case in provision of services would be similar.

MrAnchovy Thu 04-Oct-12 19:28:25

"I suspect that the statistical chance of that happening to women on maternity leave is much higher than for the general population at large, because they choose not to return to work. your mortgage lender will factor this in to their lending criteria."

That would be unlawful discrimination so no lender does this.

"All they are interested in is whether you have enough money to make the repayments. And if your maternity pay is such that you don't, then they are within their rights to refuse. Same as they would if you had a low paid job and wanted to borrow lots."

Exactly: this is not unlawful discrimination and so every lender may do this.

olgaga Thu 04-Oct-12 20:47:49

It doesn't matter what your reason for the failure to meet the criteria is, as long as the criteria is applied equally.

It wouldn't be correct to argue that the you would not have received that treatment but for the fact that you are pregnant. If on the other hand you met the criteria despite being pregnant or in receipt of maternity pay, and were refused because they didn't trust you to make future payments because of your pregnancy, you might have a case.

OneTwoOrThree Thu 04-Oct-12 21:08:52

Again - thanks to everyone for their responses....

<muses about how wonderful a place MN is, and how I shouldn't bother asking elsewhere for advice / comment>

The reason I believe it's discrimination is because I have a full time, permanent job to which I intend to return (and the position / salary is guaranteed by my employer). As such, I think my lender should take my actual salary into account, not my current level of maternity pay. They are lending for 20/25 years, so why my short term (3-6 months) cashflow is more of a concern than my longer term financial plan doesn't make sense to me... (I have offered evidence of cash savings to cover the shortfall in my income, but the lender isn't interested!)

Olgaga / Fireover (and others) - the Equality Act states Pregnancy and maternity needs to be a cause of the unfavourable treatment, but does not need to be the only or even the main cause. IMO, pregnancy/maternity is the cause of my unfavourable treatment, as it's the cause of my temporarily reduced income. I have a guaranteed higher income to return to, which my employer will happily evidence.

If I had applied a year or two ago, then the lender would not know that I intended to get pregnant / go on maternity leave. Also, I (or any mortgage applicant) could resign as soon as funds are drawn down....

Interestingly, I have spoken to a couple of alternative banks, both of whom say that they would base lending on my full time salary, as long as my employer will write a letter confirming the date I will return.

I do think I have a case here, however suspect it will take some time to win this battle. As such, in all likelihood I will move to one of the alternative banks. I wonder if it's worth pursuing this with my current lender to:
a) force them to make a change so nobody else suffers this 'discrimination' (if they do eventually concede that they have discriminated)
b) to get some king of goodwill gesture / payment from them
c) to keep my mind active in the midst of maternity leave

Thanks again for your help and views - keep 'em coming! smile

OneTwoOrThree Thu 04-Oct-12 21:16:12

Also.... From the Financial Ombudsman Service:

"Case Study 37/3 - sex discrimination
The firm refused to give Ms Y a mortgage, because she was pregnant. Nowadays all women have the right to return to work after maternity leave, and many do. So the firm’s practice was discriminatory on the grounds of sex."

Not quite the same, but similar??

YoullLaughAboutItOneDay Thu 04-Oct-12 21:49:29

OneTwo - The thing is, banks do make decisions based on your current financial circumstances .That is how they do it. I think your stuff about resigning, or getting pregnant a year later is a bit of a red herring to be brutally honest. I don't think any of that is relevant to your case - though of course it is relevant to the annoyance and frustration.

I do think you are perhaps getting so angry on this one that you aren't seeing the big picture. Take the fact that it is maternity pay out of the equation for one moment. You are an existing borrower who is asking to increase your borrowing at just the time you have reduced earnings. I suspect that is one of the reasons you are having an easier time with other banks - they are seeing this as simply 'customer on salary X wants to borrow Y', whereas your current bank are seeing potential warning signs. And banks are under massive pressure currently to lend responsibly.

On what you could get out of it:

1. You might get them to change their policy or 'retrain' people. You would most likely get that with a fairly formal complaint, but will not get it if you threaten legal action. The shutters will go down and you will get no concessions.

2. You might get a small amount. I got a couple of hundred from a bank who rather stuffed up my account. I would take the views of someone who works at a bank if they are reading this, but I'd be surprised if they do much bigger payments without financial loss.

3. There are better ways to keep mentally active! Get thee over to the feminism board or something!

OneTwoOrThree Thu 04-Oct-12 21:52:48

Hmf grin

<off to find a different battle to pick>

olgaga Thu 04-Oct-12 22:14:41

IMO, pregnancy/maternity is the cause of my unfavourable treatment, as it's the cause of my temporarily reduced income.

But they can argue that it's of no interest to them what the reason for your reduced income is. It is the temporarily reduced income in itself which is the reason. They would argue that anyone applying for an extension to their loan who was in a position where they were expecting a temporarily reduced income would be treated the same, because they would not meet the Affordability Calculation.

For example a man, about to go on reduced sick pay through an accident or illness, who would also expect to go back to full pay at a later date.

olgaga Thu 04-Oct-12 22:17:18

Anyway, I meant to say good luck with the baby! Plus I think the Financial Ombudsman is completely snowed under with PPI claims, so you would probably be in for a long wait. You might have achieved potty training by the time you get a response!

CelineMcBean Thu 04-Oct-12 22:31:59

I think you have a case but there is no precendent so how successful you would be is unclear and you would have to go through the courts which is potentially costly.

I have a background in banking and a qualification that allows me to give advice on the Equality Act 2010. For the purposes of the law comparisons between women on maternity and sick people is a big no-no. This has been the case for quite some time and stems from EU Directives.

The simple question needs to be would you be given the service if you were not pregnant or on maternity leave? Yes or no? Income should be calculated from the employment contract, not the maternity pay which is short term. Lenders don't make decisions based on a customer's liklihood of taking maternity leave or going off sick at other times so making these decisions because someone is pregnant or on maternity leave is prohibited by the Act.

Op, I would suggest contacting a broadsheet's money section about your treatment. I think that would get you a better resolution than anything else because the negative publicity would be more of a concern to the bank.

olgaga Thu 04-Oct-12 22:48:43

OP why not get in touch with the Equality Advisory Service:

www.equalityadvisoryservice.com/

olgaga Thu 04-Oct-12 22:49:36

Celine, the relevant issue in the comparator I suggested was not that the person was sick. It was the fact they were on a temporarily reduced income.

CelineMcBean Thu 04-Oct-12 22:58:52

I understand that but the cause of that reduced income is important.

CelineMcBean Thu 04-Oct-12 23:00:08

Besides maternity is a tempory situation, unlike unemployment or another legitimate reason to decline.

CelineMcBean Thu 04-Oct-12 23:08:33

Another thing that has just come to me, is that there is only a requirement for women to take 2 weeks compulsory maternity leave (4 if they are a factory worker) so reduced income cannot be expected because there is no reason to presume how long someone will take off.

olgaga Fri 05-Oct-12 07:38:21

By the sound of it the lender is not making any assumptions as to whether or not OP will return to full time salary. They are basing their information on what the OP has told them about the level of her maternity pay.

It is not the fact that it is maternity pay, it is the level of the maternity pay that is the problem.

OP if you are in the midst of their complaints process, how have they justified their decision? That would be interesting.

olgaga Fri 05-Oct-12 07:48:02

I just found this:

www.thisismoney.co.uk/money/mortgageshome/article-2117753/Families-home-buying-dreams-shattered-banks-tough-new-parents.html

I'd not waste any more time on your bank if you can get the loan extension elsewhere and you are absolutely sure it's something you should do. However, you might as well pursue it with the FSA anyway. But I wouldn't "bank" on getting anything out of it grin.

olgaga Fri 05-Oct-12 07:50:38

You should also bear this in mind:

"If you have been turned down for a credit card or loan, the worst thing you can do is to keep applying for more credit because any credit applications you make – whether or not you’ve been successful – will show up on your credit file. Several applications in a short space of time may make lenders think you are desperate for cash and this will damage your credit rating further. Your credit rating affects whether you can get credit, how much you can borrow and – sometimes – the interest rate you may be charged."

From here:

https://www.moneyadviceservice.org.uk/en/articles/what-to-do-if-you-have-been-refused-a-loan-or-credit-card

CelineMcBean Fri 05-Oct-12 09:12:00

It is absolutely about the maternity pay and lender assumptions. If she were not on maternity pay and would have been given the loan that's discrimination. Maternity is not a permanent state. To make a lending decision assuming it is is wrong. The longest she could be on reduced pay is a year but it could be much, much less.

Plenty of women have babies and continue to pay the mortgage even on SMP or maternity allowance. Or in some cases nothing at all!

The OP has a permanent contract and no more expectation of non-return than anyone else. The lender is making assumptions based on her maternity.

From memory I think The Guardian have previously investigated lender discrimination related to maternity and some charities definitely have but I forget which (pos Fawcett society, maternity action, working families... Maybe CAB??). May be worth a look op?

olgaga Fri 05-Oct-12 10:55:59

Well Celine there was us all not realising the law on discrimination is so beautifully clear! grin

CelineMcBean Fri 05-Oct-12 11:32:20

confused Is that really necessary? I'm fairly sure from reading back what I have written that there is no clarity because there is no definitive case law. We disagree - that's not unusual on untested points of law and is the whole basis of our court system.

YoullLaughAboutItOneDay Fri 05-Oct-12 11:46:25

I can totally see your argument Celine. I think the issue is whether a judge would say:

1. This is about the fact that the OP is on maternity pay, ergo it is about maternity/pregnancy; or

2. This is about the level of maternity pay the OP is on. Therefore it is not about the fact of being off, but the level of that pay.

I assume, btw, that there is no defence of justification available in this situation? I have assumed that is the case as it would be in the employment sections of the Equality Act, but I haven't actually double checked.

I also think, as I always advise anyone considering litigations/ombudsman complaints, that the OP needs to think really carefully about what she is trying to achieve. Because if she wants to get this escalated to someone in the bank who goes through the law with in house/external counsel and possibly changes policy, that needs a different approach to if she is after a small goodwill payment (and given the circumstances, a large payment is unlikely to be forthcoming).

MrAnchovy Fri 05-Oct-12 11:50:21

"Income should be calculated from the employment contract, not the maternity pay which is short term."

But it would be uncommercial and irresponsible of a lender to give a mortgage to someone that could not afford the repayments in the short term. A lender could investigate whether the borrower had sufficient savings to meet the payments while income is reduced, but that would involve a potential minefield of enquiry and assumptions about dates of returning to work etc. which the lender is under no obligation to navigate.

That would be one line of defence for a lender. As you say Celine, it is not clear cut and no clarity has been added by any published case. Given that there are a number of lenders that are willing to lend on normal terms based on return-to-work salary there is little commercial incentive for a borrower to fight this, or public interest for their cause to be taken up by a representative body.

CelineMcBean Fri 05-Oct-12 12:01:23

I don't think there is a defence of justification but I haven't checked recently either! I also wrote there is no idea of success rate, potentially costly and recommended contacting a broadsheet as ime that will be quicker and more successful.

I think there's a third scenario that could be considered along the lines of: is this an issue where the bank lends to other women who take or are likely to take maternity leave but have declined to provide the same service to this particular woman because she was on maternity leave at the time of application.

Of course I don't know the whole facts and I'm just pontificating but there's certainly enough existing law to try to make a case. If one had the money, energy and inclination.

I don't have reservations about Ombudsman route in same way as litigation because it's free but it can take an age and there's no guarantees.

Frankly I would be amazed if lending policy even mentioned maternity leave other than with instructions not to discriminate. I know it did in at least 2 of the 4 banks I have worked for but I've been out of banking for a while now and my career spanned several years.

Interesting debate smile

YoullLaughAboutItOneDay Fri 05-Oct-12 12:33:04

Agreed.

Sorry, I just realised that perhaps the last paragraph of my previous post wasn't that clear. When I said "I also think...", I meant I was agreeing with and expanding on what you said, not that I was disagreeing smile.

OP- if you do it, come back and tell us what happens!

olgaga Fri 05-Oct-12 12:39:19

Celine, it is because you said this: It is absolutely about the maternity pay and lender assumptions.

Whereas I am saying it is not so clear-cut. It's all very well ignoring the fact that the bank has an arguable case that it is about income level, but that will be their case. They will say that income which falls below the Affordability Calculator for any reason, whether the applicant is male or female, pregnant or not disqualifies the applicant.

This is not a case where the lender has assumed OP will not go back to work, it is about affordability. That's why couples who are having a baby are also being refused mortgages - as illustrated in the article I linked to above:

A drop in household income forced by most maternity leave periods can catch out couples who apply for a home loan when one partner is pregnant or on maternity leave.

There clearly are instances of discrimination against women in the provision of services, which should be properly pursued. I just don't think this is one of them.

As the article goes on to say:

A spokesman for the Council of Mortgage Lenders says: ‘Lenders are expected to ask borrowers about, and to take account of, any ‘foreseeable changes’ (such as reduced income or increased expenditure) that the borrower knows may affect their ability to pay the mortgage.’

It's getting tougher for everyone to get any kind of loan. Today's clamp-down by Nationwide on interest only mortgages, requiring 50% equity, is another sign of the times.

CelineMcBean Fri 05-Oct-12 14:38:59

Yes I understand that is your argument olgaga and I'm arguing a slightly different one. Until there is a clear case that sets out the argument both arguments' pertinent points are equally valid and it is my perogative, as it is yours, to state in the context of other posts points of that argument rather emphatically. To clarify, each of our arguments is clear cut within the rather fuzzy context of the law even though neither of us can be absolutely confident of how successful any of the arguments might be at the current time. I suspect we probably agree on that!

I am also very familiar with lending criteria, policy and the laws relating to that having been CeMAP qualified and FSA registered in a past life and involved in lending decisions and I still work in the industry albeit in a different role.

youlllaugh that makes sense smile

BelleCurve Fri 05-Oct-12 20:43:15

Hi OP - I have actually been in your exact situation and did take the case to the Financial Ombudsman on the grounds you mention under the Equality Act.

The lenders approach to me was discriminatory as I had sufficient funds to pay the mortgage during my maternity leave and they refused the mortgage on the grounds that I may not return to work. However, unfortunately after 2 years the Ombudsman decided against me and with discrimination claims you have to submit within six months.

I also participated in some research www.noreena.com/2011/11/banks-women-discrimination/ and the government promised an inquiry yes Lynne Featherstone looking at you but nothing ever came of it.

OneTwoOrThree Fri 05-Oct-12 20:53:26

Wow! My longest MN thread to date <proud>, and what a debate!

Celine - my interpretation of the legislation was the same as yours, hence why I think I have a case. Whilst I'm up for the fight, realistically this will only be via complaint with the bank, the Financial Ombudsman, and perhaps the Guardian or other media route. I certainly don't have the money, nor would I want to spend any money taking this to the courts.

Olgaga - thanks for your input too. I hadn't considered this alternative view and now that you have explained it, I can see why the bank may interpret the legislation this way.

Ultimately, I am now in this for the sake of the 'fight' (as well as a slim hope of some financial compensation grin). I have found another lender who sensibly is happy to use my salary as opposed to my current income, so there is no issue....

For clarity on the details.... The 'problem' lender is one of the biggest UK banks. I'm therefore somewhat surprised that they aren't erring on the side of caution in terms of their interpretation of the legislation (I work for a large financial services company who are scared shitless cautious not to inadvertently do the wrong thing). Interestingly, my new lender (assuming all goes to plan) is one of the other biggest UK banks.

Also (not that it should make a difference), the mortgage is in joint names with DH. His income + SMP is not enough to meet the lending criteria, hence why I need mine included. The request is for additional lending of circa 15% more than the current mortgage, and this would take us to and LTV of 65%. Furthermore, I have offered to evidence that I have cash savings to cover the shortfall in my income for the remainder of my maternity leave (up to the maximum of 12 months leave), but the 'problem' lender aren't interested. I suspect this is a "computer says no" situation. The lender didn't even take me through the full application - as soon as I declared my level of maternity pay they refused to proceed further, and told me to revisit when I returned to work at my normal salary (Celine - I think this is pretty concrete evidence to support maternity discrimination, based on your assessment of the legislation?)

So, where next? I've written my first complaint letter, and received a very bland (suspect it is a standard letter) response explaining that I don't meet lending criteria. I have written again, re-iterating that I believe their lending criteria is discriminatory and asking them to explain why they do not believe this is the case... I await their response... In the meantime, I'm going to move my mortgage to another bank.

Lastly (because someone asked), the reason I want/need extra borrowing is to to pay for an extension I have recently done on my property - bungalow attic conversion adding two bedrooms and and bathroom (required so that DC2 can have their own bedroom).

Thanks once again for your input / thoughts. I'll keep you updated as this progresses.....

OneTwoOrThree Fri 05-Oct-12 20:57:50

BelleCurve - xpost...

Interesting, very interesting! Why did the Ombudsman rule against you, and how did they explain this? Also, who is it that a discrimination claim needs to be made to (within the 6 month window)?

YoullLaughAboutItOneDay Fri 05-Oct-12 21:09:52

Gosh. Given that Belle was one situation I thought would win- because it was based on assumptions about women maybe not returning- I would like to know too!

olgaga Fri 05-Oct-12 22:14:47

Also (not that it should make a difference), the mortgage is in joint names with DH.

Well I think that will actually make a huge amount of difference. I assumed you were on your own - I simply cannot see how you can possibly bring a maternity/sex discrimination claim as a couple!

BelleCurve Fri 05-Oct-12 22:16:17

The Ombudsman ruled that the bank (I'm guessing it may be the same one as our stories sound exactly the same) had not broken their lending policies and that their policies were not discriminatory.

At the time the research report was done, I gave an interview to the Times - but looking just now and the page has been taken down so can't link. It was a full 2 page spread. Plus I was invited on Woman's Hour to discuss it with the BBA but they backed out at the last minute.

I'm still furious about it now, even though I got the mortgage with another provider and all is well, so I understand the need to "fight the fight",

In order to complain to the Ombudsman you need to prove that you have been financially disadvantaged and claim an actual amount.

If you want to take the case to court under the discrimination legislation, ime it is difficult to find a lawyer who will deal with this type of complaint. Discrimination lawyers are mostly focused on employment law, not services. I have also tried various consumer associations, the Fawcett Society, the EHRC and complained directly to the FSA but with no success.

Given there were a number of women who participated in the research in a similar situation there was some initial talk of a kind of "class action" against the banks, but this really needs a sponsoring organisation and I haven't managed to find anyone who really wants to take this on.

YoullLaughAboutItOneDay Fri 05-Oct-12 22:16:41

But you wouldn't be bringing it as a couple. It would be discrimination against the OP because her contractual pay is not being factored in, only her SMP. Why in your view would it make a difference?

YoullLaughAboutItOneDay Fri 05-Oct-12 22:18:19

Belle - that is really interesting. Why didn't they think the policy was discriminatory. Or did they not give reasons?

YoullLaughAboutItOneDay Fri 05-Oct-12 22:20:07

I can totally see that there isn't the obvious well trodden path to claim in services situations. FWIW, I think the 'you might not go back' argument is dreadful, and far more clear cut than the OPs situation. In a comparable employment situation, you'd have a strong case and you'd easily get a lawyer who could help you file a claim in time. Awful the disparity.

olgaga Fri 05-Oct-12 22:24:45

Why in your view would it make a difference?

The decision doesn't relate solely to the ability of the OP to meet the Affordability Calculator. The mortgage is in both names - the affordability is their joint responsibility. If their joint income doesn't meet the affordability criteria, then they will be refused.

Get my drift? This is not a decision made on the basis that a woman is pregnant. It's a decision made on the basis that a couple don't meet the requirements of the Affordability Calculator.

YoullLaughAboutItOneDay Fri 05-Oct-12 22:28:55

But it is the treatment of the woman's pay that is making them dip below the threshold. If they had treated her pay in a way which ignored the maternity leave/pay, they would have met the criteria. As I say, I think the case is one that could struggle, but I don't think that the fact that it is a joint mortgage matters at all.

YoullLaughAboutItOneDay Fri 05-Oct-12 22:29:55

Are you a lawyer by the way (not a dig, just interested, and don't use jargon like 'justification' if I don't know I'm talking to a fellow legal bod).

BelleCurve Fri 05-Oct-12 22:35:25

The bank (and ombudsman) insisted that they were basing their decisions solely on income - which for the few months in question was obviously lower than usual. So from that perspective, they didn't consider it was discrimination.

In reality, they just didn't believe that I would go back to work. I have a handy transcript of the conversation if you can be bothered to read...

" Because I am on maternity leave you can’t count any of my salary in the calculations

Yes, yes What we generally do, I mean there is an official rule because obviously during maternity leave, you’re either on reduced salary generally or you’re on sort of state maternity pay er like benefit income and that would continue until you go back to work, which I believe is sort of February next year

Officially for a mortgage what we should be doing really is waiting until you’re back in work and we can see your salary back in the account as to the level we’d expect because we’re sort of signing off a mortgage for X amount of years, and until you go back to work, you know, on that certain date and that sort of salary and people obviously do change and reduce hours and drop salaries... And because, you know, obviously you’ve had children etc

In order for us to confirm for you know for definite what you are going to go back on, the official line is that we should wait until we’ve seen the salary at the level we expect, at that point we assess it, we can look at it a little bit in advance because obviously the fact you’ve been with us for a long time and you’ve already had mortgages with us which is what I was saying to X is we would ask for a return to work letter potentially sort of 3, 4 months before you go back to work which is towards the end of this year.

Which is nearer the time and hopefully would be sort of more definite sort of return to work generally...not...not...you might definitely be going back...

But generally as a rule sort of 3,4 months in advance is deemed the fact that if you were unsure you were going to go back or if there was a change in your details or whatever then hopefully it would have been sorted by then

Sort of 8, 9 months in advance is far too far really. Officially what we should do is wait until you are back into work and start seeing your salary but we can look at it a little bit because

But there is a legal obligation on my employer to give me the job back at the salary which I’m... I’ve got confirmation of my salary after I went on maternity leave. So there is a legal obligation on my employer to give me my job back at my existing salary

Yeah, yeah. I understand that part of it, I mean you don’t have to go back to work and you don’t have to accept the hours or the terms that you’re going back to work on. But because of the circumstances you are in...But we wouldn’t agree a mortgage on the basis that you are currently on maternity leave

My husband could ask to go on flexible hours or anyone else could ask to go on flexible hours, I don’t see why I am the one you assume is not going to be working?

Well we don’t assume but we would need to confirm it. Being on reduced pay, because you’re on maternity leave, which we understand, but we would need it sort of nearer the time to want that confirmation.

YoullLaughAboutItOneDay Fri 05-Oct-12 22:38:55

Jesus, that is shocking.

So the Ombudsman either didn't read that transcript or didn't accept it reflected the actual decision making of the bank? That would have been total death to an employment case defence!

Essentially though, it sounds like the argument they gave is exactly the OP's situation - they claimed it was about your then current income. That is worth knowing.

BelleCurve Fri 05-Oct-12 22:45:42

The Ombudsman did read the transcript. I took it through the full process.

I still struggle to believe that they didn't decide in my favour but there were lots of strange things that went on. Vital file documents were "missing" when i asked for my file under data protection.

Also, to add insult to injury, they insisted on getting my husband to sign his permission for me to complain to the Ombudsman or they wouldn't process my complaint!! angry

YoullLaughAboutItOneDay Fri 05-Oct-12 22:46:52

Oh. Dear. God.

olgaga Fri 05-Oct-12 23:01:46

But it is the treatment of the woman's pay that is making them dip below the threshold.

The level of income is not necessarily due to maternity pay. Single women on maternity pay, and couples even if the woman is on maternity pay, will continue to meet the Affordability Calculator despite the reduction in salary - in which case their application would be agreed.

You could use your argument to argue discrimination in all sorts of ways. Women's earnings are on average lower than men's, by about 1/3. A significant part of the reason for that is lost earnings due to pregnancy, childbirth and child rearing. Does that mean that in order to be non-discriminatory, banks should accept applications from women even though they generally earn less, and generally fail to meet the affordability criteria? If so, what on earth would be the point of an affordability criteria?

and don't use jargon like 'justification' if I don't know I'm talking to a fellow legal bod)

I'm not sure I understand what you mean here.

However, in answer to your question I am not a lawyer, but I have been dealing with sex discrimination, employment and other areas of law for 35 years.

I really can't see you getting anywhere with a sex/maternity discrimination claim on behalf of a male and female couple. The decision the bank has made in relation to your joint application is based on your joint earnings.

CelineMcBean Sat 06-Oct-12 00:50:16

Oh good grief. I wrote a massive post and broadband went down. Just caught up. Fwiw the mammoth post is below but the only relevant point is probably the first about when Belle's case came about and the law at the time.

Olgaga from what you are posting I'm not really sure you understand the implications of the pregnancy/maternity protected characteristic as outlined in the Equality Act 2010. But I will go away and dig out the relevant points from the law or come back and apologize if I am incorrect in my assumption.

I suspect the Obudsman is not ruling using the legislation or Belle's case was pre-Equality Act when pregnancy/maternity was only covered by sex discrimination legislation. It now has it's own separate protection but not everyone has caught up.

Without having a more thorough look at the legislation related to provision of services I can't say whether I agree with the points you make OP but I suspect I would if my memory is correct if I get a spare 5 minutes I'll have a proper look this weekend.

The 6 month window i don't think is legislated for but again would need to check and extra information would be helpful.

As regards the complaints process have they stalemated your complaint or is it still ongoing? They have 8 weeks to resolve it and if they don't respond/resolve to your satisfaction/stalemate it you can go to the Obudsman.

I'm wondering if a strongly worded letter making specific references to the law might help? And try Patrick Collinson or Miles Brignall at The Guardian. Phone the money desk on a Monday for best chance of being picked up.

Taking your business elsewhere is the best revenge so good for you OP (and makes litigation even less worth it because the loss has been heavily mitigated).

Ooh I love a good juicy case! More details please! <<drools>>

CelineMcBean Sat 06-Oct-12 00:52:22

My little marker just before "I suspect" to indicate the beginning of my mammoth post disappeared. Just to be clear...

CelineMcBean Sat 06-Oct-12 00:53:33

And I am horrified at Belle's story. Truly dreadful.

YoullLaughAboutItOneDay Sat 06-Oct-12 08:02:51

But it is the treatment of the woman's pay that is making them dip below the threshold.

The level of income is not necessarily due to maternity pay. Single women on maternity pay, and couples even if the woman is on maternity pay, will continue to meet the Affordability Calculator despite the reduction in salary - in which case their application would be agreed.

I think we are going to have to agree to disagree here.

It might not always be the woman's maternity pay that makes them dip below the affordability criteria, but it is here. And that is obviously what counts for a claim - was discriminatory treatment of the woman what caused the unfavourable treatment. Where I do agree is not so much about the fact that we are dealing with a couple (which I don't think is relevant) as the point I made above - that the court may accept that the treatment was not because of maternity/pregnancy, but because of dipping below the threshold.

You could use your argument to argue discrimination in all sorts of ways. Women's earnings are on average lower than men's, by about 1/3. A significant part of the reason for that is lost earnings due to pregnancy, childbirth and child rearing. Does that mean that in order to be non-discriminatory, banks should accept applications from women even though they generally earn less, and generally fail to meet the affordability criteria? If so, what on earth would be the point of an affordability criteria?

Well, that would be indirect discrimination. And whilst you could potentially make the argument, the defendant then has the defence of justification - that their policy was a proportionate means of achieving a legitimate aim. Since the legitimate aim would be responsible lending and a threshold is probably about as proportionate as you can be, I wouldn't see that type of case getting anywhere. It's not so much that you can't extend the argument in the way you describe, it's that there is a strong and obvious defence, so no one would bother. [Happy to be corrected if any of that is different in services legislation, as I am speaking from general sex discrimination employment sections of the Equality Act]

OneTwoOrThree Sat 06-Oct-12 08:38:58

Again, thanks to everyone for their input / views...

Celine - below is a 'copy & paste' from the Equality Act, are these the points you were going to dig out? I included this in my 'follow up' complaint letter to the bank, and have asked them to specifically advise why they do not feel that their lending policy is discriminatory on the grounds of pregnancy/maternity.

4.34: The Act protects women from discrimination because of their pregnancy and maternity in the provision of services.
4.38: The unfavourable treatment will be pregnancy and maternity discrimination if the woman would not have received the treatment, but for the fact that she is or has been pregnant.
4.40 (What does 'because of' mean? (ref 4.34)): Pregnancy and maternity needs to be a cause of the unfavourable treatment, but does not need to be the only or even the main cause. Example: A woman applies for a mortgage and lets slip that she is pregnant. She is subsequently refused a mortgage. She asks why and is told that the lender is concerned she may not be able to maintain repayments. Although the reason given for the refusal is her inability to maintain repayments, the cause of that assessment is her pregnancy and the refusal is likely to be pregnancy discrimination.
4.43: Another way to identify whether pregnancy and maternity is a cause of the unfavourable treatment is to ask 'but for the woman being pregnant of recently having given birth, would she have been treated in that way?

youlllaugh - Do you think 4.40 clarifies that even indirect discrimination is not permitted under the Equality Act?

Belle - I'm horrified by your story too. Does this pre-date the Equality Act?

Olgaga - thanks for your views, I do appreciate the alternative viewpoint. Even although the mortgage application is in joint names, I do still think this is maternity discrimination. If the bank were to use my salary instead of my maternity pay, then my DH and I would meet lending criteria. The discrimination comes from using maternity pay, not salary.

Got to run to take kids to Sat am activities. Back later.....

BelleCurve Sat 06-Oct-12 11:11:11

The original rejection was in 2009, but it took 2.5 years to get a final answer from the Ombudsman. I considered (and threatened) actions against the Ombudsman under the Equality Act 2010 as there is an extra obligation on public bodies not to discriminate (I forget the actual wording).

My understanding however is that the Equality Act just consolidates previous discrimination legislation rather than tightens it up (not a lawyer, finance here too - but I have read quite a lot about this!)

In my approach directly with the bank I followed the process of the Sex Discrimination Act - requesting them to complete a questionnaire (which they refused to do) but the end result of the process as directed by the EHRC was really only an employment tribunal.

For the specifics of my case, they really focused on the "current income" piece even though I had over a year's gross income in savings with the same bank, had a letter confirming my employment (I got a raise whilst on maternity leave!) and was the main wage-earner, sole mortgage holder 6 years prior to that point. In addition the mortgage request was 2.5 times my sole income, and 60% LTV - so well within any standard lending criteria.

However, they would grant a mortgage to my H who had no credit track record -with no thought about how having children would impact his future earning ability.

I emphasised this in my correspondence, that all parents have equal rights to request flexible working conditions. Also as there is a legal obligation to guarantee the same job/equivalent job on return from maternity I was in a better position than many at the time.

In the comparison to insurance premiums etc where statistical data can be used to generate a premium, this is specifically excluded from bank lending where individual circumstances must be assessed. If you continue along the lines that statistically "women are more likely to work part-time, so we won't lend them money" you can extrapolate to "women are more likely to get pregnant, so we won't lend them money". Or basically we just won't lend money to women.

I know of friends who have been asked when applying for a mortgage if they plan to get pregnant.

Also, and quite bizarrely when I confronted the Ombudsman with the sex discrimination angle they told me "we don't have to consider what is legal, just what is fair" hmm

BelleCurve Sat 06-Oct-12 11:15:24

Here is the document Public Sector Equality Duty

I raised this also with the EHRC and they said unless it could be proved that the Ombudsman was consistently discriminatory in their decisions there was nothing that could be done to enforce this. As long as their documents were available in large print it would be considered that they had complied. The only alternative would be a judicial review.

YoullLaughAboutItOneDay Sat 06-Oct-12 14:42:07

OneTwo - Sorry if I confused you. My reference to indirect discrimination wouldn't apply to pregnancy discrimination. It is a very specific legal concept applying to sex discrimination claims in employment (and presumably in services provision too:

- the employer has a rule, which is on its face gender neutral;
- that rule disproportionately affects women; and
- the woman who is claiming was affected

(or vice versa if the claim is from a man). The classic example is part time working. An employer could say 'well, we just don't allow part time, that is gender neutral', but it disproportionately affects women because they shoulder the majority of childcare. So there is a potential claim, unless the employer can 'justify' their decision as a defence. An example might be "We can't allow part time working because we are an oil rig and we can't keep flying you back to the mainland" grin.

I was responding to Olgaga's argument that you could extend what I was saying in previous posts to mean that no one could apply affordabilty criteria to women because they statistically earn less, and that is mainly because of children/pregnancy/childcare.

In pregnancy, indirect discrimination isn't relevant. Legally, either treatment is related to the fact you are pregnant, or it isn't.

olgaga Sat 06-Oct-12 15:33:21

YoullLaugh

It's not so much that you can't extend the argument in the way you describe, it's that there is a strong and obvious defence, so no one would bother.

The point I was making was that it would be indeed be laughable to extend the argument in that way - and you have picked up on the fact that there would be a "strong and obvious defence" - in other words, the bank can argue there is an "objective justification" of their decision.

Where I do agree is not so much about the fact that we are dealing with a couple (which I don't think is relevant) as the point I made above - that the court may accept that the treatment was not because of maternity/pregnancy, but because of dipping below the threshold.

Then we are in agreement about the key issue. OP is not being discriminated against because she is pregnant. She is also not being discriminated against because of any assumption that as a result of her pregnancy/maternity she may not be able to meet the affordability criteria. That would be direct discrimination.

She is being discriminated against because she does not meet the affordability criteria. The reason is her reduced income, as a result of maternity leave. On the face of it, that is clearly indirect discrimination.

The definition of indirect discrimination is:

The use of an apparently neutral practice, provision or criterion which puts people with a particular protected characteristic at a disadvantage compared with others who do not share that characteristic, and applying the practice, provision or criterion cannot be ^objectively justified.

The objective justification here is the affordability criteria. This is something the bank has no choice but to apply, and it is applied to all applicants equally at the time of the application.

OneTwoOrThree
The discrimination comes from using maternity pay, not salary.

They aren't looking at salary. They're looking at income and outgoings in relation to the affordability of the product you have applied for, at the time of your application - see above with regard to indirect discrimination.

BellCurve's experience is a perfect illustration of just how limited it is.

It is simplistic to argue that OP's drop in salary is a result of maternity pay, ergo she is being discriminated against because she is pregnant, and that is direct discrimination. But that's not the case, IMO. It is indirect discrimination, objectively justified.

The law reflects the society we live in, and sadly women still bear the brunt of the economic and social effects of pregnancy, maternity and raising a family.

Finally, I would just like to clear up any misunderstanding about my position here. I am as frustrated as anyone else by the limitations of the law.

olgaga Sat 06-Oct-12 15:42:35

I just read your last post, You'llLaugh. It seems to relate more to employment rights, and even then it's only right if it is a clear case of someone being discriminated against because they are pregnant.

For example: "You're pregnant? Congratulations!"

Following day:

"I'm really sorry but I've decided to make your post redundant because I woke up this morning to find that your work has dried up in the last 24 hours".

Or:

"So pleased you are enjoying motherhood, but unfortunately while you were on maternity leave we decided your job no longer exists" (while continuing to employ the "maternity temp").

A tribunal would be inclined to decide both scenarios were "Pregnancy Dismissal" and therefore automatically unfair. Of course, it's usually a lot more subtle than that - and believe me, it's a lot more difficult to meet the threshold than you think.

In relation to the provision of services, I can't think of a similar scenario.

YoullLaughAboutItOneDay Sat 06-Oct-12 15:46:09

Indirect discrimination does not apply to pregnancy/maternity. As a legal head of claim, indirect discrimination applies to:

age;
disability;
gender reassignment;
marriage and civil partnership;
race;
religion or belief;
sex;
sexual orientation.

The idea of objective justification is part of the test for indirect discrimination, so that bit isn't relevant here either.

The test for pregnancy/maternity is whether A is treated 'unfavourably' 'because' of pregnancy/childbirth.

So with pregnancy it isn't about whether discrimination is direct or indirect. The test is whether the treatment is 'because of' the status. We have both pointed out that you could argue it is not because of the pregnancy - if the court accepted that is was simply 'because of' the dip in current income. Equally Celine has argued how you could say it was because of the pregnancy - because the only reason for that dip is maternity, so the two are inextricably linked.

YoullLaughAboutItOneDay Sat 06-Oct-12 15:48:55

Olgaga- what do you mean by 'believe me, it's a lot more difficult to meet the threshold than you think'? Firstly, my very first post on this thread I told the OP I thought she might struggle. Secondly, I have been an employment lawyer for more than a decade, so I think I have a fair idea how difficult it is.

olgaga Sat 06-Oct-12 15:59:06

Yes, but you first have to show that someone is being treated unfavourably because of that protected characteristic. That is simply not clear in this case. The given reason is the inability to meet the Affordability Criteria. The OP says she doesn't meet that because of her pregnancy, but the reason for her inability to meet the affodability criteria isn't an issue for the bank.

The issue for the bank is the affordability, not the reason for the lack of affordability.

Anyway, I can see I'm wasting my time here!

olgaga Sat 06-Oct-12 16:00:01

what do you mean by 'believe me, it's a lot more difficult to meet the threshold than you think'?

Exactly what I said!

olgaga Sat 06-Oct-12 16:03:43

I would add that employers have learnt over the years to be far more subtle about discrimination. I have instructed employment lawyers and worked with Counsel on many different discrimination cases. Some of the people I have worked with now sit as Employment Judges.

YoullLaughAboutItOneDay Sat 06-Oct-12 16:05:05

Olgaga, I think we will have to agree to disagree, yes. I agree that you have to show the 'because of' bit, and as I explained two posts ago, Celine has given one way you might argue that.

YoullLaughAboutItOneDay Sat 06-Oct-12 16:08:32

I think I will leave it there Olgaga. You clearly are not open to alternative points of view and discussion. You know everything - including apparently knowing what I think about the threshold for discrimination and being right about it whilst I am wrong. I really can't argue with that.

olgaga Sat 06-Oct-12 16:28:24

Yes well maybe I do know a lot about this. Is it so strange, that someone else might be knowledgeable about your particular line of work?

I've never presumed to know what you think - I just know what I think, and that's what I've posted. You might not agree with my opinion, but it's as valid and knowledgeable as yours.

I'm sorry you're so annoyed, I thought it was quite a worthwhile debate, and OP has clearly found it interesting. I am also grateful to BelleCurve for relating her experience in particular, which made interesting (if depressing) reading.

YoullLaughAboutItOneDay Sat 06-Oct-12 16:45:48

I fully accept that others might be knowledgeable, including much more knowledgeable than me. For all I know world wide experts on these issues are posting on this thread.

What annoyed me is that you did seem to presume to know what I think. In a block of text where we were speaking directly to one another you said "believe me, it's a lot more difficult to meet the threshold than you think". That is presuming to know what I think. If you intended the 'you' in the general 'than one thinks' sense, then I apologise for the misunderstanding.

You did also post a whole paragraph arguing that the OPs situation was, on the face of it, clearly indirect discrimination and discussing objective justification. It's an easy mistake to make and I had to go back to the Act to double check, but of course none of that applies and you didn't acknowledge that mistake in your next post.

olgaga Sat 06-Oct-12 19:47:40

I do understand that it is direct discrimination to treat a woman unfavourably because of her pregnancy.

I wasn't actually arguing that there was such a thing as "indirect pregnancy discrimination", or even that OP would have an arguable case of indirect sex discrimination. I was just trying to explain my view that you could, at a push, describe OP's case as indirect sex discrimination (but with objective justification) so that wouldn't in any case be a runner. I am sorry if I was unclear about that.

But I really do think it would be stretching it to argue that it was unfavourable treatment because of her pregnancy. Much as I would like to think otherwise.

Anyway, interesting debate - if a little fraught at the end! No offence meant to anyone.

OneTwoOrThree Mon 08-Oct-12 20:59:51

Good debate, and one that I guess we won't resolve until someone takes this through the courts (and that won't be me - unless I find a 'fee free' lawyer wanting to take the case on to make a name for themselves grin).

My plan (as I see it) is to pursue my 'follow-up' complaint with the offending bank, and in the meantime remortgage to one of their competitors <grin>

If my current bank concede they are in the wrong, then great.... If not, I intend to take this further - more for the sense of accomplishment and benefit of other people who may find themselves in a similar situation in the future..

I will need to consider what route I take though - either (or both of) Financial Ombudsman or the media route. Whilst FOS feels like the 'right' way to proceed, I am disheartened by Belle's treatment and FOS's view that they don't have to consider what is legal, only what is fair hmm. I also realise that this could take months or years to get through FOS, whilst a media driven approach could be quicker. My final consideration (and one I've not confessed to yet!) is that I work for a bank - not my current lender nor my proposed lender, but I do want to consider the impact on my professional reputation of 'attacking' a bank via the media...

If anyone is interested in the outcome, then I'll post here to keep you updated.

Thanks again smile

CelineMcBean Mon 08-Oct-12 21:26:39

Op, I did have a quick look at the Act, particularly the service sections, exceptions and schedules and I haven't revised my opinion.

I don't have time now to pull out all the relevant points (you seem to have most of them any way) and Youlllaugh has done a brillisnt job, but suffice to say I do not need to make any apologies wink

OneTwoOrThree Mon 08-Oct-12 21:58:45

Thanks Celine.... Really appreciate your input and you have reassured me that I may well have a case here.

I think the aspect that really irks me is the 'timing' issue. Any (female) mortgage applicant could go on to get pregnant / take maternity leave, but would not be discriminated against for this potential future change...

Furthermore, I am frustrated by the fact that I have offered to demonstrate to the 'bad bank' that I have planned for my reduced income (by having cash savings that are greater than the reduction in my income for the maximum duration of my maternity leave) and can therefore afford the proposed mortgage repayments.

In addition to this, I have overpaid my monthly repayments by circa 60% each month since the outset of my mortgage. I have subsequently 'cashed this in' to pay for my extension, but having made these regular payments demonstrates my 'repayment ability' - ie the bit the bank should be concerned about?

I'd love to achieve something during my maternity leave (other than a wonderfully happy, balanced etc etc DC), so am 'well up' for this fight!. I suspect the chances of this 'battle' being over before I return to work are very slim though...

YoullLaughAboutItOneDay Mon 08-Oct-12 22:05:57

If you want to go for it, go for it. I do think it is horribly unfair, and admire your guts.

However, just bear in mind the legal test. It's about whether you were treated unfavourably due to your pregnancy. It's not about comparators in maternity discrimination. How you are treated compared to other women who might go on to get pregnant isn't that (legally) relevant. I can see how it irks, but don't get sidelined into that being your main argument or it will be pretty easy for them to rebut you.

olgaga Mon 08-Oct-12 23:15:58

OneTwoorThree Do please let us know how you get on making your case, and how it is to be argued - and of course I am eager to hear the outcome!

Best of luck to you with all that's in store.

BelleCurve Tue 09-Oct-12 20:48:00

I've found the Ombudsman final wording to my complaint

"X says that where an applicant is on maternity leave, it will only take into account their employment income if it receives proof that they will return to work within 3 months. I am satisfied that X does not reject applications solely because an applicant is on maternity leave. Rather, it assesses whether the requested borrowing is affordable based on the income that is verifiable. I think that this is a reasonable approach in the circumstances and that X has not treated Ms Curve unfairly."

I am not sure why/how this 3 month thing came about, being as your return to employment rights are exactly the same throughout and if you choose not to return the standard notification period is IIRC 8 weeks.

They don't make any comparison to alternative situations, so I think just having a "maternity leave" policy is discriminatory in this circumstance.

Also, and most tellingly - they never even asked what my income was whilst I was on maternity leave. For all they know I could (I wasn't) have been on 6 months full pay.

Plus here is some of the media coverage from the research report that I contributed to. Unfortunately, that is not me with the bump!

sorry daily mail

YoullLaughAboutItOneDay Tue 09-Oct-12 20:55:34

That's interesting.

It sounds like the bank was arguing that it wasn't so much about maternity leave or thinking you might not return to work. It was effectively about the fact that you did not meet the earnings threshold because they wouldn't count your pay unless it was going to start coming in again imminently.

Rather undermined by not asking how much your maternity pay was though hmm.

But if that defence has worked with the ombudsman, it is something for the OP to bear in mind.

olgaga Tue 09-Oct-12 22:45:38

I am satisfied that X does not reject applications solely because an applicant is on maternity leave. Rather, it assesses whether the requested borrowing is affordable based on the income that is verifiable.

Yes - I thought that was the obvious response. As I tried to explain, it's not the maternity pay in itself. It's the affordability. A woman on maternity leave (or a couple) may still have a sufficiently high income to meet the affordability criterion.

Interesting study you participated in and linked to Belle. The article I linked to in my post upthread is a later one:

www.thisismoney.co.uk/money/mortgageshome/article-2117753/Families-home-buying-dreams-shattered-banks-tough-new-parents.html

There's no easy answer to this - the Affordability Test is mandatory, and non-discriminatory - applying, as it does, to everyone.

CelineMcBean Tue 09-Oct-12 23:14:36

I think the fact that ruling came in before the Equality Act and pregnancy/maternity became a specific protected characteristic is a very important point.

I can see how a sex discrimination argument would be harder to fight but the new statutory legislation potentially gives the maternity discrimination legs.

olgaga Wed 10-Oct-12 08:49:20

The Ombudsman's decision post-dates the Act.

Pregnancy/maternity was a protected characteristic (S.3A of the SDA 1975) prior to the EquA.

You would still have to show that the lender has, at the time of the application, discriminated on the grounds of the protected characteristic (pregnancy and maternity) and not income. That is the only relevant issue.

It is obviously important that lenders do not make assumptions about people as a result of any protected characteristic. The correct approach is to look at affordability. Which is what the lender has done.

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