The Sex Discrimination Act specifically prohibited discrimination on the grounds of pregnancy or maternity leave. Since October 2010 this type of pregnancy and maternity discrimination has been unlawful under the Equality Act.
Pregnancy and maternity discrimination is deemed to be automatic discrimination without the need to provide a male comparator. A male comparator (actual or hypothetical) is used in other sex discrimination cases to test whether a man would have been treated more favourably in similar circumstances.
This protection exists during what is called the ‘protected period’ from conception to the end of statutory maternity leave.
Women are protected by the Equality Act where they are:
The Equality Act’s provisions for pregnancy and maternity cover all areas of employment, including, but not limited, to:
The Employment Rights Act and the Maternity and Parental Leave Regulations also give employees (not other workers) additional protection. This legislation makes dismissal automatically unfair if it is due to an employee’s pregnancy or maternity leave. Subjecting a woman to any other detriment due to her pregnancy or maternity leave is unlawful.
Pregnancy and maternity discrimination arises where a woman is treated unfavourably because of her:
Women are also protected from unfair dismissal and detriment for reasons connected to:
Pregnant women and new mothers have specific workplace rights. It is important that employers and employees understand these rights. If an employer fails to observe these rights they may face an Employment Tribunal claim for unlawful sex discrimination and/or unfair dismissal.
Employers must make suitable and sufficient health and safety assessments of the risks pregnant employees face at work.
All pregnant employees – regardless of hours worked or length or service – have a statutory right to paid time off for ante-natal care.
All employees are entitled to one year’s statutory maternity leave regardless of length of service.
Employees are entitled to work for their employer during maternity leave for up to 10 days without bringing that leave to an end.
Statutory maternity pay is now 39 weeks for those who qualify. Contracts of employment may provide for more generous terms and/or payments.
All employees must take a minimum two weeks’ maternity leave from the day of birth.
A woman may bring a discrimination and/or detriment claim if, as a result of maternity leave, she is denied benefit of the terms and conditions to which she is entitled (including pay rises, promotion and bonuses).
Statutory paid annual leave (5.6 weeks) continues to accrue during ordinary maternity leave and additional maternity leave.
Employers must make suitable and sufficient assessment of the health and safety risks for new and breastfeeding mothers.
Employers must provide adequate rest and meal breaks and suitable rest facilities (note – not toilets) for breastfeeding mothers.
All employees with a child under 17 have the right to request flexible working. Employers must give proper consideration to the request using the required statutory procedures.
Regardless of their length of service, employees dismissed when they are pregnant or on maternity leave are entitled to receive written reasons for their dismissal without having to request them.
It is automatically unfair to dismiss a female employee or select her for redundancy due to pregnancy or maternity. There is no minimum qualifying service period.
The preferential treatment of women on maternity leave over other employees during a redundancy programme is a rare example of lawful positive discrimination.
Employees on maternity leave have special protection from redundancy. Where a redundancy situation means it is not practical to continue to employ a woman on maternity leave under her existing contract of employment, she must be offered any suitable alternative vacancy and is given priority over and above any another employee who is also at risk of redundancy but not on maternity leave. This can be with an associated company. The terms and conditions must not be substantially less favourable than those of the previous contract.
Our expert discrimination in the workplace solicitors can help with all aspects of employment law, pregnancy and maternity discrimination.