4 things you need to know about pregnancy and maternity discrimination

Pregnancy and maternity discrimination are cone of the protected characteristics that was introduced in the Equality Act 2010, as a freestanding claim.  It can occur before employment starts, during employment and in certain situations after employment has ended.

1.What is pregnancy and maternity discrimination?

(a) There are two types of pregnancy and maternity discrimination:

• discrimination because of pregnancy and maternity, which occurs where an employer (or someone it employs) treats a woman unfavourably:
• during the protected period (i.e. from when pregnancy starts until it ends, including maternity leave), because of her pregnancy or because of a pregnancy related illness
• because she is on compulsory maternity leave(i.e. 2 weeks [or 4 weeks if she works in a factory] following the birth of her baby)
• because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave (i.e. 26 weeks and 52 weeks respectively).

Unlike other forms of discrimination there is no requirement for a comparator.

(b) direct pregnancy and maternity discrimination, which occurs where, because of a woman’s pregnancy and maternity, she is treated less favourably than a person who is who is neither pregnant nor on maternity leave.

There is also direct sex discrimination, which occurs where, because a woman is breast-feeding, she is treated less favourably than a person who is who is not breast-feeding.

Direct discrimination cannot be objectively justified.

Unfavourable and less favourable treatment effectively means the woman has suffered a detriment of a kind that a reasonable person would or might consider the woman had been disadvantaged.  An unjustified sense of grievance cannot amount to a detriment.

Unlike other forms of discrimination, there is no perceived discrimination or discrimination by association because of pregnancy and maternity.

All women are protected irrespective of the length of service and the number of hours they work.

2. What should an employer do when informed that an employee is pregnant?

All employers are under a legal duty to carry out a ‘general’ workplace risk assessment of the risks to protect the health and safety of its employees, contractors and visitors.

However, the Management of Health and Safety at Work Regulations 1999 state that if the work carried out for her employer could involve a risk to her because she is pregnant or she is a new mother or to her baby, an employer should carry out a ‘specific’ risk assessment. The assessment will relate to any processes, working conditions, physical, biological and chemical agents and the employer must take reasonable action to protect the woman, which could mean:

• altering her working conditions or hours of work, or
• offering her suitable alternative work, or
• if neither are possible to suspend her on full pay.

If an employer fails to carry out a ‘specific’ risk assessment or does carry out such a risk assessment but fails to put measures in places to protect the employee, this could amount to pregnancy and maternity discrimination during the protected period.

3. What should an employer do if an employee is pregnant or on maternity leave and a redundancy situation occurs?

If a redundancy situation occurs while an employee is on maternity leave that impacts the work she does for an employer, the employer must consult with her irrespective of whether she in on maternity leave [see our blog: Answers to Frequently Asked Questions (FAQs) About Redundancy].  The employer can suggest that the employee use her ‘keep in touch’ days in order to consult with her in the same way as any other employee who is at risk of redundancy but not on maternity leave.

If an employee is selected for redundancy and this was because she is pregnant or on maternity leave, this will amount to pregnancy and maternity discrimination during the protected period and automatic unfair dismissal. This would also occur if an employer selects a pregnant employee for redundancy to avoid paying her statutory maternity pay.

If an employer conducts a proper redundancy process and an employee on maternity leave is selected for redundancy, she must be offered a vacant suitable alternative role before this is offered to another employee not on maternity leave.  The work offered must be of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances. If an employer fails to do this, it could amount to automatic unfair dismissal.  This obligation does not apply to pregnant employees.

In summary, if an employee is dismissed by reason of redundancy while she is pregnant or on maternity leave, she may have a claim for pregnancy and maternity discrimination and/or automatic unfair dismissal if:

• there was not a genuine redundancy situation
• there was a failure to consult and warn about redundancy
• she was selected for redundancy because she is pregnant or on maternity leave
• she was not offered a suitable alternative vacancy (if one exists)
• she was selected for redundancy in contravention of an agreed selection procedure
• the selection criteria used for the redundancy selection process were unfair in themselves or were unfairly applied.

4. What remedies are available for pregnancy and maternity discrimination?

If an employee, worker or job applicant believes her [prospective] employer (or another worker) has discriminated against her because of pregnancy and maternity she can bring an employment tribunal claim. There is no qualifying period of employment to bring such a claim.

If an employee on maternity leave is dismissed by reason of redundancy, this could amount to automatic unfair dismissal. Unlike other dismissals, an employee does not need to have been employed by her employer for a minimum of 2 years to bring an employment tribunal claim.

Tribunals can award unlimited compensation, which can include an award for injury to feelings and financial losses because of the discrimination.

The material contained in this blog 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.