Travers unfair dismissal case marks rare example of discrimination claim reaching hearing, says Harriet Bowtell

I was surprised to read earlier this year about the employment tribunal case of trainee Katie Tantum suing her former employer, Travers Smith, for unfair dismissal and pregnancy discrimination. She claims she was not kept on after her training contract because she became pregnant in her final seat. I was surprised not by her allegations, but by the fact that: (1) she actually brought a claim; and (2) it got all the way to a hearing.

Cases of pregnancy and maternity discrimination rarely reach the public domain. In fact, according to research carried out by the Equal Opportunities Commission in 2005, only 3% of women suffering this type of discrimination complained to an employment tribunal. Most of these cases will settle pre-hearing.

The very short three-month time limit for lodging a discrimination claim is no doubt partly to blame, often falling in the later stages of pregnancy or soon after the birth. Women's concern for their and their baby's health, stress and anxiety and damage to career prospects are also contributing factors.

But the number of cases of pregnancy and maternity discrimination we see seems to be increasing. This is in part due to the economic downturn and the increase in women on maternity leave being made redundant. They are often viewed as an 'easy target', not being in the workplace, and, at such a vulnerable time in their careers, are less likely to complain about being dismissed unfairly.

Let's look at a typical example; we'll call her Emily. Having had no contact from her employer during her maternity leave, Emily got in touch with her employer to discuss her return to work. Her new boss invited her in for a 'get to know you' chat only to then inform her, in the meeting, that 'regrettably' he was making her redundant and there was nothing else for her.

In this situation, Emily's employer had an obligation to offer her a suitable alternative role, if one existed, without her having to apply. Many employers appear unaware of this, or fail to inform the employee of any such role immediately after their role becomes redundant.

In another scenario, Erica returned from maternity leave only to be made redundant a few weeks later, not having been given back any of her pre-leave work. She was also made to feel unwelcome on her return and not integrated back into the workforce.

Her employer used the subjective criterion 'commitment to the job' when selecting her for redundancy, which could be translated as a willingness to stay late. Many women with young children are unable to do this on a regular basis and use of such a criterion to select a woman for redundancy would be indirect sex discrimination.

On the flip side, Jacqueline was prepared to carry out the demanding hours that her pre-maternity leave role involved. However, her employer made an assumption about what Jacqueline, as a new mother, was not prepared to do. She also scored low on this criterion and was also discriminated against, indirectly.

Tantum's allegation that she was not kept on at Travers Smith post-qualification because she became pregnant is unusual. We more commonly see women later on in their career who have perhaps been promised partnership or other promotions that mysteriously disappear once their pregnancy is announced, or sometimes just before or on return from maternity leave.

Sometimes obstacles are suddenly put in the way of promotion that did not previously exist. It can be hard to prove that such treatment is due to pregnancy or maternity leave.

Many women returning from maternity leave are refused the flexibility they need to look after a young family and hold down a job. They are forced to resign. This is huge waste of talent and simply perpetuates the problem. I believe many employers discriminate, even at the pregnancy stage, because of ignorance and unfounded fears of what they can expect from the future.

The Law Society president Lucy Scott-Moncrieff recently remarked after a major Law Society survey that some law firms are "paying mere lip service to flexible working".

One of the recommendations that has emerged from the survey is 'embedding flexible working practices in corporate culture'. Scott-Moncrieff referred to firms losing talented women and promoting mediocre men. While some may not agree with this statement, it is an inescapable and uncomfortable truth that there are simply not enough women in senior level positions in law firms.

Firms need to think of more creative ways to retain women who are trying to balance family life with a career. The over-emphasis on billable hours is an outdated measure of performance. Shouldn't all skills be taken into account, rather than just time in the office? Firms could also focus more on compressed hours, job shares, working remotely, using teams of lawyers on cases and using support staff.

That way, in the words of Scott-Moncrieff, perhaps we can ensure that more women see the paintings on the boardroom wall.

Harriet Bowtell (pictured, top) is a partner in the employment department at Slater & Gordon.