Our expert Employment lawyers answer your questions relating to pregnancy rights at work
Pregnancy and maternity are both considered to be ‘protected characteristics’ under the Equality Act 2010. However, the law on pregnancy and maternity is slightly different than that of other protected characteristics. The Equality Act will protect you from discrimination when pregnant and on maternity leave until the end of your statutory maternity leave. There is no two year qualifying period.
Pregnancy discrimination is when you are treated unfavourably because you are pregnant. Dismissal or discrimination due to pregnancy including related reasons such as pregnancy related sickness is unlawful.
Some examples of pregnancy discrimination at work are:
As you have not been employed 26 weeks you won’t qualify for Statutory Maternity Pay (SMP). There is a maternity pay and leave calculator on the GOV.UK website. If you don’t qualify for SMP you may be able to get Maternity Allowance.
An employer may fabricate poor performance issues where an employee does not have the 2 years’ service requirement to bring a claim for unfair dismissal. You still have the right to not be treated unfavourably and not to be subject to a detriment because of your pregnancy.
This is unlawful pregnancy discrimination.
We would advise you to raise a formal grievance referring to recent appraisals, emails/letters relating to any bonus awards or pay increases to show that prior to announcing your pregnancy, there were no performance concerns.
If you have more than 2 years’ service, to dismiss fairly your employer should follow a fair capability process. This requires them to put the issues to you and to listen to your response before deciding whether to place you on a Performance Improvement Plan (PIP). Account must be taken if there are mitigating factors such as pregnancy-related sickness or fatigue or a failure by management to set realistic targets or support you.
Your grievance should be heard before putting you on a PIP as your complaints are that your threatened dismissal is due to pregnancy discrimination.
You can bring a claim for pregnancy discrimination in the Employment Tribunal even if you remain in employment. You may choose to do so so you don’t lose your right to Statutory Maternity Pay or because you are about to have your baby and go on maternity leave.
There is no obligation for job applicants to tell prospective employers they are pregnant. However, we would recommend disclosing this once you are offered the job.
If this prospective employer then withdraws the job, and the only circumstance that had changed was you revealing that you were pregnant, you would have a strong claim for pregnancy discrimination.
Protection against pregnancy discrimination is available even before any employment relationship has begun.
You must tell your employer you are pregnant by the fifteenth week before your baby is due, known as the “notification week”. You will probably want to tell your employer before then because you will need to take time off for antenatal appointments. You might also want to advise your employer that you are pregnant at a much earlier stage if you have concerns that your job may be a health risk to your baby.
HR should check with you who you want to know about your pregnancy especially in the early stages. They may want to notify colleagues on a need to know basis such as your line manager and it is good practice for them to obtain your consent to this. However, HR isn’t required to keep what you tell them confidential, if they believe that your pregnancy needs to be shared in order to address a problem, such as any risks to your health and safety. Or to ensure you get paid time off for ante natal appointments.
It is important that your boss deals with your pregnancy announcement sensitively especially if you have concerns about having a miscarriage. Your boss should ask you who knows and who you would like to know. Where there are colleagues such as your line manager or HR who need to carry out important processes like a health and safety assessment, or to manage you, your boss should explain why these colleagues need to know because of their duty of care to you.
You cannot be sacked for not telling your boss that you are pregnant. However, you will need to inform your employer about your pregnancy in order to confirm the date you will start maternity leave.
Legally, the latest you need to tell your employer about your pregnancy is 15 weeks before the week in which your baby is due.
Your employer is under a duty to assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of new or expectant mothers in the workplace. The result of the assessment must be given to you but not necessarily in writing. If your employer fails to carry out the risk assessment, they may commit an act of unlawful pregnancy and maternity discrimination. If the assessment identifies that these chemicals are a significant risk, your employer must alter the working conditions to avoid this. If that is not possible, your employer must offer other suitable alternative work or ultimately suspend you on full pay if that is not available. If they don’t carry out the right procedure then you should raise a formal grievance.
Unfavourable treatment because of pregnancy-related illness is unlawful discrimination under the Equality Act. Your employer should disregard absence caused by morning sickness. You should draw this to their attention and if you are unhappy with their response, raise a grievance and consider making a claim to an Employment Tribunal.
You can ask your employer if you can reduce your hours on a temporary basis. Be aware that this in turn may reduce your Statutory Maternity Pay where the first 6 weeks is at 90% of your average gross weekly earnings with no upper limit over a period of 8 weeks prior to taking maternity leave. You should make sure any change is confirmed in writing and that it is agreed that it is for a temporary period.
If you think that your current working conditions are a risk and are making you unwell you should notify your employer in writing of your pregnancy and ask your employer to take action to protect your health and safety. Any health and safety adjustments must ensure that your pay and maternity pay are not affected.
Since June 2014, any employee with at least 26 weeks of continuous employment can make a request for flexible working under the statutory scheme for any reason.
However, the scheme allows your employer up to three months to deal with your request. In your case, this might take too long, but you can still request this for when you want to return to work. Be careful, though; only one formal flexible working request can be made in any 12-month period.
This is not an uncommon experience. If this treatment is because you have announced your pregnancy, it is unlawful discrimination under the Equality Act 2010. You should collate evidence such as appraisals and positive feedback to defend yourself where these allegations are unfair. You should also set out any concerns you have about your managers raising these concerns. This could include a lack of resources and inadequate training. You should also consider raining a grievance and consider making a claim to an Employment Tribunal once you have been though Acas Early Conciliation.
If you have a pregnancy-related illness where travel exacerbates or there are health and safety reasons as to why travelling is not a good idea, then you should notify your employer so that they can carry out a risk assessment. This may result in them adjusting your job description and duties so you no longer have to travel. If after a thorough investigation, your employer finds there is no good reason why you cannot continue to travel, then if you refuse you may be subject to disciplinary action.
Yes. It is unlawful to discriminate against a pregnant woman or because you have a pregnancy-related illness. You must be careful to ensure your claims are in time by entering your case for Acas Early Conciliation within three months minus a day of the act of discrimination or detriment. Sometimes there can be continuing acts that can be linked together. But it is much safer to keep your claims in time. Acas Early Concillaition lasts for 6 weeks and a certificate is issued giving the final date that you can lodge your claim in the Employment Tribunal.
Vento awards are banded according to the level of seriousness of the discrimination and the impact this has had on you. For claims presented to the tribunal on or after 6 April 2023 the bands are set as follows: 1) lower band – £990 to £9,900 2) middle band – £9,900 to £29,600 and 3) upper band – £29,600 to £49,300.
Relevant factors can be whether the discriminatory act is a “one-off “compared to a campaign of discriminatory harassment. Also the vulnerability of the Claimant and the distress that has resulted is relevant.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2024