Pregnancy and maternity discrimination in the workplace

Introduction

There are specific provisions which protect women from discrimination in the workplace because of pregnancy or maternity leave.  Pregnancy and maternity is one of the nine protected characteristics in the Equality Act 2010 (the Act) with the others being age, disability, sexual orientation, sex, race, religion or belief, gender reassignment and marriage and civil partnership.

Types of discrimination due to pregnancy and maternity

Although the types of discrimination i.e. direct, indirect, harassment and victimisation, are similar across all the protected characteristics there are specific forms of direct pregnancy and maternity discrimination whereby it is unlawful for an employer to treat a woman unfavourably in or after the protected period because of her pregnancy or a related illness.  It is also unlawful to treat a woman unfavourably because she has exercised or sought to exercise her right to maternity leave, whether compulsory, additional or equivalent maternity leave.

Pregnancy and maternity discrimination differs from the other protected characteristics in that it is expressly excluded from indirect discrimination provisions and the harassment provisions although in both these instances an employee may still have a sex discrimination claim.  However, an employer is prohibited from victimising a job applicant or employee because they have made or intend to make a pregnancy and maternity discrimination complaint.

It may also be possible to bring a direct sex, or pregnancy and maternity discrimination claim where the circumstances are not covered by the specific provisions above, for example, where the discrimination takes place on the basis of an incorrect perception that the woman is pregnant.

The employer’s motive is irrelevant, and it is not possible to justify this type of discrimination.

Other employment rights

There are specific rights in the Employment Rights Act 1996 that protect employees from dismissal or other disadvantages (except pay) where the reason or principal reason relates to pregnancy or maternity leave as well as rights to health and safety protection and time off for ante natal appointments.  These are beyond the scope of this article which focuses on discrimination.  In addition, a woman who is made redundant while on maternity leave has priority over other employees in respect of being offered any suitable alternative vacancy.

Who is protected?

Although the right to statutory maternity leave only applies to employees, a wide range of individuals are protected against discrimination because of pregnancy and maternity in the Act including employees, partners, agency workers, workers and some self-employed contractors.  

Employment Statutory Code of Practice

Employers should also be aware of the Equality and Human Rights Commission Employment Statutory Code of Practice (the EHRC Code) which provides guidance for employers on how to meet their responsibilities and gives work-related examples of the different protected characteristics.  Employment tribunals are obliged to take the Code into account where relevant when considering claims under the Act.

Examples of unfavourable treatment in the Code are demoting, denying training or promotion opportunities because the woman is pregnant or on maternity leave, assuming a woman’s work will become less important after childbirth and giving her less interesting work as a result and excluding a pregnant woman from business trips.

What is the protected period?

The protected period starts when a woman’s pregnancy begins and ends when she returns to work at the end of her maternity leave or when she returns to work if that’s earlier.  

If she does not have either of those rights (e.g. she is a job applicant, is not an employee or is an employee but has a miscarriage or stillbirth before 24 weeks of pregnancy) the protected period ends at the end of the period of two weeks beginning with the end of the pregnancy.

If a woman is treated unfavourably outside the protected period it would be sex discrimination rather than pregnancy and maternity discrimination unless this treatment is because of her pregnancy or a related illness and is due to a decision made during the protected period.  

Notifying employer of pregnancy

There is no obligation for an employee to inform their employer of their pregnancy until 15 weeks before the baby is due.    

However, in order to be liable under the Act the employer must know or suspect through the grapevine that the employee is pregnant.  Therefore, informing the employer triggers legal protection including the employer’s health and safety obligations to carry out risk assessments.

Unfavourable treatment

There is no requirement in the Act for a comparator and a woman who is alleging pregnancy and maternity discrimination does not need to compare their treatment with a man in similar circumstances or with a woman who is not pregnant.  The test is whether she has been treated unfavourably, rather than less favourably.   However, it can be helpful to provide evidence of how others have been treated to determine whether the unfavourable treatment is related to pregnancy or maternity leave.

The EHRC Code gives the example of a pregnant member of a company’s sales team not being asked to attend a trade fair where they expected to be.  It suggests that in demonstrating that but for her pregnancy, she would have been invited, it would help her if she can show that other members either male or female but not pregnant were invited.

Pregnancy or maternity leave does not have to be the only reason for her treatment to establish discrimination, but it must be an important factor or the effective cause.  The Code gives the example of an employer dismissing an employee who is on maternity leave shortly before they are due to return to work because the locum covering her absence is better at the job.  Had the employee not been absent on maternity leave she would not have been sacked. Her dismissal is unlawful even though performance was a factor in the decision-making.

Special treatment in connection with maternity, pregnancy and childbirth

It is not possible for a man to claim sex discrimination where an employer gives a woman special treatment in connection with pregnancy and childbirth as the Act provides that this special treatment must be disregarded.  From January 2024, the provision relating to special treatment had “maternity” added to it to reflect and preserve the effect of EU case law.  

However, pregnant women and those on maternity leave are not entitled to blanket special treatment.  In Eversheds v De Belin the EAT upheld a tribunal decision that the employer had discriminated against a male lawyer on the grounds of sex during a redundancy selection process when it inflated the score of a female lawyer on maternity leave to give her maximum points.  It found there were less discriminatory alternatives available such as measuring both employees’ actual performance during the time before her maternity leave started. Therefore, the way the employer had scored the employees was not a proportionate means of removing the woman’s disadvantage.  

Pay during maternity leave

A woman on maternity leave is entitled to benefit from the contractual terms and conditions which would have applied had she been at work.  However, there is a specific exception whereby she is not entitled to benefit from the terms providing for her remuneration.  Case law has held that a woman cannot claim equal pay with a man at work as she is in a special position which cannot be compared to that of a man.  However, there is some protection in relation to pay increases and bonuses while on maternity leave.

Pregnancy discrimination examples

Recruitment

• A job applicant does not have to tell a potential employer that she is pregnant during recruitment or before accepting a job offer.  If she volunteers this information, it should not influence the decision-makers otherwise they are at risk of unlawfully discriminating. Employers should not ask a female job applicant whether she is pregnant or planning to have children.

Poor performance at work due to pregnancy

• It will be unlawful to take action under a disciplinary or capability procedure where the reason for poor performance is pregnancy e.g. due to morning sickness or other pregnancy-related conditions.  However, the employer can raise non-pregnancy-related work issues if these arose before her pregnancy or if the poor performance is unrelated to pregnancy.  

Stillbirth and Miscarriage Discrimination

• The Code provides that sickness absence associated with a miscarriage should be treated in the same way as pregnancy-related sickness absence. Acas has published guidance on managing bereavement which looks at the issues employers may face in relation to time off and support.

Dismissal due to pregnancy

• It is discriminatory and automatically unfair to dismiss a woman because she is pregnant or for any reason related to her pregnancy e.g. pregnancy-related illness.  In order to dismiss a pregnant employee fairly, the employer must have a fair reason unconnected to her pregnancy and it must follow a fair procedure.

Maternity leave discrimination examples

Maternity leave and redundancy

• An employer should ensure that any redundancy selection criteria do not discriminate against employees who are or have been pregnant e.g. pregnancy-related absences should be ignored in any scoring exercise.
• A woman who is made redundant while on statutory maternity leave is entitled to be offered any suitable alternative vacancy in preference to other employees.  If not, she can claim automatically unfair dismissal.
• From April 2024, new regulations will provide that the right to be offered a suitable alternative vacancy will be extended to apply during the protected period of pregnancy and an additional protected period after the employee’s return to work being either 18 months after the expected week of childbirth or where the employee has notified the employer of the actual date of birth, 18 months after this date.

Maternity Leave - training and job opportunities

• Employers should ensure that employees on maternity leave are kept informed about jobs that become available, opportunities for promotion and any training available.  

Our expertise

We advise on all aspects of employment law including on issues related to pregnancy and maternity discrimination in the workplace.  We help employers to put in place the policies and procedures to support their employees and business with confidence.  We advise on how to prevent issues arising and how to handle them if they do through our employment investigations service.

We use our exceptional breadth and depth of experience to give clients personalised advice to help manage risk and resolve issues as well as bespoke training tailored to your needs together with the use of our independent HR consultants to put in place systems to monitor, review and minimise the risk of claims.  

Please contact Michael Powner or your usual Charles Russell Speechlys contact if you would like to get in touch.