Employment Focus

Pregnancy and maternity discrimination: Know the facts

We heard in the news last year that pregnancy and maternity discrimination was on the rise following the publication of a report on this subject by the Women and Equalities Committee. The results of this report showed that the number of expectant and new mothers forced to leave their jobs had almost doubled since 2005.

In response to this, the government has recently confirmed that it will commission further research on pregnancy and maternity discrimination, to be concluded by 2020. One specific area it has committed to focusing on is in relation to pregnancy, maternity and redundancy. This is in light of additional findings, published by the Equality and Human Rights Commission earlier last year, showing that 6% of women are made redundant and 11% feel forced to leave their jobs on return from maternity leave.

Pregnancy and maternity is one of the nine protected characteristics covered by the Equality Act 2010 (“the Act”) and it is therefore unlawful to discriminate against employees because of their pregnancy, because they have given birth recently, are breastfeeding or on maternity leave. In light of these findings, we take a look below at the legal framework surrounding pregnancy and maternity leave as it currently stands.

What is the law at present?

As mentioned above, the primary legislation covering this area is the Act. The Act protects a wide range of individuals within the field of employment, occupation and vocational training, including employees, partners, barristers, agency workers, some individuals engaged on a self-employed basis, and job applicants. It sets out specific protection against discrimination on the grounds of pregnancy and maternity. Under the Act, direct discrimination will occur when an employer treats a woman “unfavourably”:

• during the “protected period”, because of her pregnancy or because of an illness suffered by her as a result of her pregnancy;
• because she is on compulsory maternity leave; or
• because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

The protected period

The “protected period” starts when a woman’s pregnancy begins, and ends at the end of the maternity leave period or (if earlier) when she returns to work after the pregnancy.

Where a woman is not entitled to statutory maternity leave, the protected period will end two weeks after the end of the pregnancy. This situation might arise, for example, when an individual is a job applicant or if an employee hasn’t complied with the relevant notice requirements relating to statutory maternity leave.

What is unfavourable treatment?

Case law has held “unfavourable treatment” to mean “placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person”. For example, this would include treatment such as demotion, dismissal, or the denial of training or promotion opportunities because a woman is on maternity leave. It could also include taking pregnancy-related periods of absence into account when making a decision about an employee’s continued employment. The kind of situations where employers can often come unstuck and fall foul of the Act, inadvertently treating an employee unfavourably because of her pregnancy, include situations where they have to deal with:

• an employee who is  unable to carry out her role, either temporarily or permanently, because of her pregnancy,
• arranging cover for an employee’s absence;
• an employee who is absent because of a pregnancy related illness; or
• an employee with performance issues, when these issues arise due to morning sickness or other pregnancy related conditions.

Such situations need to be handled sensitively by the employer so as to avoid any suggestion that they have acted in a discriminatory manner towards the pregnant or absent employee.

An employee’s pregnancy or maternity leave does not have to be the only or even the main reason for her unfavourable treatment. It only needs to materially influence the employer’s conscious or subconscious decision-making for the unfavourable treatment to be discriminatory.

Unlike other forms of direct discrimination, an employee does not need to show a comparator in order to establish discrimination because of pregnancy and maternity. This is because the test is whether she has been treated “unfavourably” not  “less favourably”. 

Financial loss suffered by an employer cannot justify discrimination. For example, if a successful job applicant confirms they are pregnant, and cannot then work for health and safety reasons, an employer will, if necessary, be expected to take on another employee on a temporary basis to cover that employee’s post during the pregnancy, even if this results in additional costs for the business.

Other types of discrimination under the Act

It is also important to be aware of the following additional potential claims:

Victimisation

This type of discrimination broadly refers to subjecting an employee to a detriment because they have (or the employer believes they have) made a complaint (or supported the complaint of another) under the Act.

Harassment

The Act does not offer specific protection against harassment on the grounds of pregnancy or maternity, but there is nothing to stop a pregnant employee or employee on maternity leave arguing that they have been harassed in relation to sex.

Indirect discrimination

This type of discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. Indirect discrimination applies to all of the protected characteristics apart from pregnancy and maternity. However, indirect sex discrimination may apply in pregnancy and maternity situations and so it is still something to be aware of.

Other important things to consider…

Employers should also be aware of additional protection afforded to pregnant employees and new mothers, such as health and safety protection, minimum periods of maternity leave and pay, the maintenance of rights during such leave and protection from dismissal for a reason connected to their pregnancy, maternity leave or because they have given birth.

As soon as an employer becomes aware of an employee’s pregnancy they should carry out a health and safety risk assessment and take appropriate steps in relation to anything that comes up as a result.

If you have haven’t got a maternity policy in place, or would like any of your current maternity or family friendly policies to be reviewed, please contact Catherine Hope on 0191 226 3801 or at catherine.hope@sintons.co.uk.