PREGNANCY AND MATERNITY DISCRIMINATION

A guide on pregnancy and maternity discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination, please contact us as soon as possible.

What is unlawful discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by an employer to another person). These rights apply whatever the length of service and whatever hours worked.

Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.

For the purposes of this web page we use the term employee.

What is pregnancy and maternity discrimination?

Pregnancy and maternity discrimination occurs when an employee is treated unfavourably because an employee is pregnant, breastfeeding or has have given birth.

Pregnancy is the condition of being pregnant or expecting a baby.

Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.

The first 26 weeks of maternity leave is referred to as ordinary maternity leave (OML).

The second 26 weeks of maternity leave is referred to as additional maternity leave (AML).

The treatment could be a one-off action or as a result of a rule or policy. It does not have to be intentional to be unlawful.

What should employers do once an employee has told them she is pregnant?

All employers are under a duty to carry out a workplace risk assessment to protect the health and wellbeing of its employees, worker and contractors.

An employer will be required to carry out a specific risk assessment and alter working conditions or hours of work or provide suitable alternative work to avoid any significant risk to the health and safety of new or expectant mothers. In some instances, if there is no suitable alternative work, an employer must suspend on full pay for as long as necessary to avoid the risk.

What are employees entitled to after their maternity leave end?

Employees are entitled to return to the same role during OML. If an employee returns during or at the end of AML and the employer can show it is not reasonably practicable for the employee to return to the same role, the employee must be offered a suitable alternative role.

What types of pregnancy and maternity discrimination are there?

Pregnancy and maternity discrimination can be:

• direct discrimination
• discrimination in work
• victimisation.

What is direct pregnancy and maternity discrimination?

An employer (or other person) discriminates against an employee under section 13 of the EqA, if:

• because of an employee's pregnancy and/or maternity
• the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances an employee has been disadvantaged, which includes where a woman is breast-feeding.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

In claiming direct pregnancy and maternity discrimination, an employee will need to prove that she has been treated less favourably because of her pregnancy or maternity during the protected period.

There is no requirement for a comparator.

An employer will not be liable for direct pregnancy and maternity discrimination if they did not know the employee was pregnant.

For the purposes of establishing direct pregnancy and maternity discrimination, it does not matter whether the employee is pregnant or on maternity leave, as discrimination can be:

• by perception
• by association. 

Examples of direct pregnancy and maternity discrimination

• a female employee is denied promotion as she told her employer that she is pregnant
• an employee is treated less favourably because the employee is perceived to be pregnant when she is not
• a employer treats a male employee less favourably because the employee’s spouse is pregnant.

Direct pregnancy and maternity  discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees who are pregnant or on maternity leave.

What is pregnancy and maternity discrimination at work?

Discrimination because of pregnancy and maternity in work occurs where an employer treats an employee unfavourably during the protected period (ie from when pregnancy starts until it ends, including maternity leave), because:

• of the employee's pregnancy or because of a pregnancy related illness
• because the employee is on compulsory maternity leave (ie 2 weeks [or 4 weeks if an employee works in a factory] following the birth of the employee's baby)
• because the employee is exercising or seeking to exercise, or has exercised or sought to exercise, the right to OML or AML.

An employer will be guilty of a criminal offence if it allows an employee to work during compulsory maternity leave.

What is victimisation?

Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:

• brought claim under the EqA
• gave evidence or information in connection with a claim under the EqA
• did any other thing for the purposes of or in connection with the EqA
• alleged that your employer or another person has committed an act that contravenes the EqA.

Liability for pregnancy and maternity discrimination

An employer will be vicariously liable for the acts of its employees and workers for pregnancy and maternity discrimination unless it can show it took reasonably practical steps to prevent it from happening.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for pregnancy and maternity discrimination advice and representation?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.

As specialist employment lawyers, our clients' interests are paramount to us. 

We ensure that all our clients receive the best advice possible.

We will advise on workplace discrimination and represent you in any subsequent employment tribunal claim.

Contact us today ...