What is pregnancy and maternity discrimination?
The Equality Act 2010 (“the Act”) protects women against direct discrimination and victimisation on the grounds of pregnancy and maternity. Pregnancy and maternity are considered 'protected characteristics' under the Act. Discrimination on the grounds of pregnancy or maternity is unlawful.
As an employer, you must not discriminate against an employee on the ground that she is pregnant, has a pregnancy-related illness or is a mother. It is important to note that this law applies irrespective of whether the employee has been employed by the business for one day, six months, two years or ten years.
Pregnancy and maternity discrimination arises when an employee is treated unfairly because she is pregnant, has a pregnancy related illness, is breastfeeding or has recently given birth. To succeed in this claim the employee must suffer a disadvantage as a result of the unfair treatment.
The law says that an employee has been treated unfavourably when the employee is treated unfavourably due to their pregnancy or maternity compared to other employees. Discrimination might include not offering them a job, dismissing them, changing their pay without consultation or forcing them to work while they are on maternity leave, singling out a pregnant woman or a mother recently returned from maternity leave for redundancy, making inappropriate comments about their pregnancy, failing to communicate with an employee on maternity leave, mishandling requests for flexible working from employees on maternity leave, failing to offer a mother recently returned from maternity leave the same opportunities as other employees and failing to allow an employee to return to their original job after maternity leave.
In order for the treatment to be maternity or pregnancy discrimination, the unfavourable treatment must take place during what is called the “protected period”.
To whom does the law apply? All employees and workers. In some cases, albeit in limited circumstances, the protection extends to self-employed individuals.
The pregnant employee must notify the employer of the pregnancy
An employee must tell their employer that they are pregnant. The employee must give this information to the employer at least 15 weeks before the beginning of the week the baby is due. An employee must also tell the employer the date that they would like to start their maternity leave (the earliest date is 11 weeks before the due date unless there is another reason eg the employee is ill and has to stop working etc). They do not have to provide this information in writing. However, if you as an employer requested it in writing, then the employee must provide it in writing.
What is the next step? As an employer, you must reply to the employee within 28 days. In your response, you should inform the employee that they are entitled to 52 weeks’ maternity leave and you should also confirm the employee’s return date. The employee has the right to change this date later, but they must give you at least 8 weeks' notice.
Importantly, as an employer it is your responsibility to carry out adequate health and safety assessments. All pregnant employees also have the right to paid ante-natal appointments.
The Protected Period
The protection against discrimination on the grounds of pregnancy or a pregnancy-related illness lasts for a specific period. It starts when the employee becomes pregnant. This is known as the “protected period”. The protected period ends when the employee’s maternity leave ends or when the employee comes back to work if earlier.
If the employee is treated unfavourably after the end of the protected period, the employee could still bring a claim for sex discrimination if she can show that she was treated less favourably on the grounds of her sex or treated less favourably than a man would have been treated in the same circumstances.
Can I lawfully dismiss an employee or make an employee redundant while they are pregnant or on maternity leave?
Yes, you can However you must ensure that the reason for dismissal or redundancy does not discriminate against the employee on the ground of the employee’s pregnancy or maternity. You must always make sure that the dismissal is genuine, and that it is necessary. An employer must follow a full and fair procedure in line with the Acas Code of Practice on disciplinary and grievance procedures.
It is also essential that you consult with your employee beforehand and keep in regular touch with the employee during their pregnancy. If it is possible, consider alternative positions at the workplace. The decision to dismiss has to be balanced, consistent and as fair as possible.
To get some guidance on how to achieve procedural fairness when dismissing an employee, please visit our previous blog article at: https://www.purebusinesslaw.com/post/dismissal-of-an-employee-the-acas-code.
To reiterate, employers should bear in mind that unlike in other employment cases, a pregnant employee does not have to have been employed by the employer for two years in order to bring a claim for pregnancy and maternity discrimination at the Employment Tribunal.
Pregnancy related illness and time off work
It is unlawful to treat an employee unfairly, because of a pregnancy-related illness. If the employee is absent from work wholly or partly because of pregnancy, in the four weeks before the week in which the baby is due, the employee’s ordinary maternity leave period will start automatically, even if the employee intended it to start at a later date.
Health and Safety at the workplace is particularly important for expecting and pregnant employees. As an employer it is your responsibility to assess the risks at work. This can include, but is not limited to exposure to toxic substances, heavy lifting or standing for a long period of time without any break.
Pregnancy related appointments are often referred to as ‘ante-natal’ appointments. The law is silent on the time permitted for these appointments. However, they must be reasonable. Reasonable time includes the time spent travelling to and from the appointment, as well as the length of the appointment. As an employer you do have the right to ask for proof of the ante-natal appointment.
What are the rights of an employee who returns to work after maternity leave?
Ordinary Maternity Leave and Additional Maternity Leave
An employee is entitled to 12 months of statutory maternity leave. The first 26 weeks is known as ‘ordinary maternity leave’. The second 26 weeks is ‘additional maternity leave’. An employee is entitled to accrued paid statutory annual leave both under additional maternity leave and the ordinary maternity leave.
In the case of ordinary maternity leave - the employee has the right to return to the same position as she was employed in prior to her pregnancy. If an employee decides to take additional maternity leave, the employee has the right to return to the same position, unless it is not reasonably practicable for her to do so. If it is not reasonably practicable for the employee to return to the same position, then the employee has the right to return to another job that is also suitable and appropriate for her in the circumstances (ie suitable alternativeemployment).
The employee is also entitled to return on terms and conditions which are not less favourable than prior to her maternity leave. An employer must not withhold any benefits that the employee is entitled to i.e. promotions and bonuses.
How can Pure Business Law help?
Specialist Employment Solicitors
Pure Business Law are specialist Employment Solicitors based in Bedford and London and operating nationally. If you need advice on a discrimination claim, unfair dismissal claim or on any of the issues that we have raised in this article, including re-organisations and redundancies, reviewing your contracts of employment or on a TUPE transfer of staff please call us on 01234 938089 or e-mail us at firstname.lastname@example.org and one of our Helpline team members will be in touch.