Equality Act - Pregnancy / Maternity Discrimination

[OneTwoOrThree]

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).

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!!

Oh. Dear. God.

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.

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!

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

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

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]

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.....

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"

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.

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" .

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.

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.

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.

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.

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.

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!

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

Exactly what I said!

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.

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.

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.

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.

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.

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.

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 ).

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

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 . 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 :)

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