Pregnancy & Maternity Discrimination at Work

You must not be treated unfairly at work because you are pregnant or on maternity leave.

What is Pregnancy Discrimination?

Pregnancy discrimination under the Equality Act (EqA) is where you are treated unfavourably during the “protected period”:

• because of your pregnancy
• because of an illness you’ve got as a result of your pregnancy
• because you are on compulsory maternity leave
• because you are seeking to exercise, have exercised, or sought to exercise your right to take ordinary or additional maternity leave.

Because the EqA says “unfavourable” treatment is the relevant measure, you don’t need to find someone to compare your treatment to in order to claim, like you do with other forms of discrimination.  It’s just a question of whether you were treated unfavourably because of one of the pregnancy related reasons in the bullet points above.

Is Pregnancy ‘Protected’ under the Equality Act?

Yes, the Equality Act protects against discrimination because of pregnancy or maternity.  Employees are protected, as well as job applicants, partners and agency workers. Protection from discrimination because of pregnancy or maternity is in addition to employees’ protection against automatic unfair dismissal protection.

What are common types of Discrimination due to Pregnancy & Maternity?

Some examples of unfavourable treatment because of pregnancy and maternity include:

• rejecting a job applicant because she is pregnant (as opposed to her ability to do the job in question)
• being put at risk of, or selected for, redundancy, or put on absence management procedures because of taking time off sick for morning sickness during pregnancy
• being put at risk of, or selected for, redundancy while on maternity leave
• temporary maternity cover being kept on and the pregnant employee being told to return to a different, lesser role because her own role is no longer available
• failure to award a pay rise that came in during maternity leave – and/or to increase maternity pay to take account of the pay rise, if appropriate
• failure to pay a bonus because you were away on maternity leave
• failure to offer training or career development opportunities because you were away on maternity leave

When do I tell my employer I am pregnant?

The “protected period” starts when you get pregnant.  It ends:

• at the end of additional maternity leave, or
• when you return to work, including going on to annual leave, if that’s earlier than the end of additional maternity leave, or
• two weeks after the end of the pregnancy if you aren’t entitled to statutory maternity leave (so e.g. where you’ve miscarried prior to 24 weeks, or if you’re a job applicant, or agency worker).

Notably, your employer has to know that you’re pregnant to be able to discriminate against you because of your pregnancy. If they don’t know you’re pregnant, their decision or actions can’t have been influenced by your pregnancy and a claim would fail. It’s possible that EU law says that protection starts when you get pregnant regardless of whether your employer knows, but it’s much better to be able to say that you have told your employer than have to argue about whether EU law does actually say this.

Which leads us back to the question of when you want to tell your employer that you’re pregnant.

It’s common not to want to tell too many people, especially in the early weeks before your first scan, and especially if you’ve had previous history of miscarriage or difficult pregnancies. These are complicated, highly personal decisions, and are outside the scope of this post.

However, if you know for instance that a redundancy programme is about to start, you may want to get advice about whether or not it might be shrewd to disclose your pregnancy early on.

There is a deadline to tell your employer that you’re pregnant though. In order to be entitled to statutory maternity pay, you must notify your employer that you’re pregnant no later than the 15^th week before your baby is due.

Are Pregnant Employees protected from Redundancy?

Yes, in so far as there are the additional protections outlined above, but you can be made redundant while pregnant, or on maternity leave.

It’s just that your employer can’t make you redundant because you are pregnant or on maternity leave without risking a successful automatically unfair dismissal and pregnancy/maternity discrimination claim.

You can expect to return to your role after maternity leave.

Can my Employer change my job role after Maternity Leave?

If you’ve only taken ordinary maternity leave – so have only been on maternity leave for up to 26 weeks in total – you’re entitled to return to the same role, on the same terms and conditions as before maternity leave.  You’re also entitled to any pay rises or other improvements that have been made during your maternity leave.

If you’ve taken any additional maternity leave – so have been on maternity leave for more than 26 weeks and up to 52 weeks – then you’re entitled to return to the same role unless that’s not reasonably practicable.

Up to your return from maternity leave (or until you switch to annual leave, if you’re taking a period of holiday before actually returning to active work), you’re protected from discrimination because of your pregnancy or maternity leave. So, if your employer tells you before your return that you’re returning to a different job, it’s important to do something before your maternity leave ends and you lose the additional protection.

Of course, if your employer doesn’t tell you you’re going to be doing a different job, or it only becomes apparent after you return that your role has changed beyond recognition, that doesn’t mean you can’t complain, but you’d be out of the protected period for pregnancy and maternity discrimination. You may have claims for unfair or constructive unfair dismissal, or sex discrimination.

As to what “not reasonably practicable” means, that’s a good question.  A genuine redundancy situation that involves a reduction in numbers doing the same job as you, or the removal of your role from the organisation structure can make it not reasonably practicable for you to return to your (redundant) role.

However, if there’s any indication that the “redundancy” has been engineered to miraculously remove you, that’s another matter.  As is a situation where your employer wants to keep your temp maternity cover on, so they move you into another role. These could lead to claims for automatically unfair dismissal and/or sex and/or maternity discrimination.

In addition, if you are made redundant during maternity leave (though not during pregnancy itself), you’re entitled to be offered any suitable alternative roles.  This means that the terms and conditions are not less favourable than your existing role, in relation to salary, location, hours, seniority etc.

Notably, the right is to be offered a suitable alternative role, not just be offered the chance to apply for it – as a woman on maternity leave, you’re first in the queue, in a rare example of a right to be treated more favourably than others.

What can I do if I have been treated unfairly during my Pregnancy or Maternity Leave?

The best course of action will depend on your situation and whether you are pregnant or on maternity leave when the issues arose.  You should also check your employer’s policies and procedures, which might give details about what you can and should do.

Generally, we’d advise that the first step is to raise a formal grievance.  Your employer’s policy might ask that you speak informally to your line manager or HR first, to see if things can be resolved without formal action.  That said, if your complaint is about being unfairly involved in a redundancy exercise, or prevented from returning to your own job, then it’s pretty serious and usually best to move straight into a formal procedure, that requires your employer to investigate and respond fully if they are to deal with the grievance properly.

Employment Law Solicitor

If you need more help with the subjects covered here then do reach out to our expert solicitors.  You can speak to our employment solicitors online via email employment@qlaw.co.uk or call us on 03300 020 863.

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