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Maternity Discrimination (Employers’ Guide)

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The law protects women in the workplace from unfair treatment and dismissal for the duration of their pregnancy and whilst they are on maternity leave.

As an employer, you have a duty to ensure the women you employ do not suffer maternity discrimination. Failure to meet your obligations can result in discrimination claims being made against you.

In this guide, we explain the obligations on employers to prevent maternity discrimination and the common pitfalls which can result in tribunal claims.

 

The law on maternity discrimination

Under section 18 of the Equality Act 2010, “a person discriminates against a woman, if in the protected period in relation to a pregnancy of hers, the person treats her unfavourably because of (a) the pregnancy, and (b) because of illness suffered by her as a result of it.”

In practice, this means employers have to ensure women workers are not discriminated against because of their pregnancy, pregnancy-related illness, pregnancy-related illness absence, for taking or planning to take, maternity leave and pay or because they want to return to work while breastfeeding.

The legislation covers all employees, casual workers, agency workers, freelancers, and contractors from the first day of employment and irrespective of their length of service.

Additionally, pregnant women are protected against unfair or detrimental treatment or automatic unfair dismissal because of their pregnancy or maternity leave under the Employment Rights Act 1996 s99 (ERA), and the Maternity and Parental Leave Regulations (MPLR) 1999 reg. 19. However, protection under the ERA and MPLR only applies to employees, but for those eligible, it is a right from their first day of their employment.

 

The protected period

The ‘protected period’ is a specific period of time when a woman is protected from maternity discrimination. It starts when the woman becomes pregnant and if she has the right to take maternity leave, it lasts until the earliest date of either:

  • The end of their maternity leave
  • Their return to work
  • When they leave their job

The employee will need to demonstrate they told their employer about their pregnancy, or their employer had become aware of it via another source.

Following the protected period for maternity discrimination, the employee may be able to claim sex discrimination if they can demonstrate they were treated less favourably on the grounds of their sex or treated less favourably than a man in similar circumstances.

 

Examples of maternity discrimination

Maternity discrimination can take many forms, and any tribunals claims will be considered on the facts and circumstances of the matter. However, there are a number of common types of maternity discrimination which employers should be attuned to and take steps to prevent:

  • Being selected for redundancy because of the employee’s pregnancy or pregnancy-related illness.
  • Refusing to extend the employee’s contract of employment during or following a probation period.
  • Refusing to recruit someone because of pregnancy or maternity.
  • Dismissal because of pregnancy, or failure to renew a fixed term contract.
  • The refusal of a job offer, promotion opportunities, or training.
  • Reduction in the employee’s pay or hours.
  • Pressurising the employee to resign.
  • Failing to remove risks in the workplace and take action to protect the employee’s health and safety during the pregnancy.

 

Does the employee have to tell you they are pregnant?

The organisation should have a pregnancy and maternity policy in place which makes clear the procedures for notifying the employer of the pregnancy and sets out the entitlements available to workers.

Employees have to inform their employer that they are pregnant by the 15th week before their baby is due. They do not have to inform their employer in writing, but it is recommended to have a written record. This should be advised in the company’s maternity policy.

If the employee is concerned about health and safety risks in the workplace or they need to take time off to attend ante-natal appointments, they will need to inform you of the pregnancy so you can deal with any changes in a timely and appropriate manner.

If you suspect or have been otherwise informed that an employee is pregnant, but she has not yet confirmed this to you as her employer, you are advised to be considerate of her reasons for this and to respect her privacy. If you have concerns that their performance is being affected, it would be reasonable to have an informal chat to discuss if they need any support from you.

 

Pregnancy-related illness

It is unlawful to treat a pregnant employee unfairly because of a pregnancy-related illness. You should expect a pregnant employee who cannot attend work because of a pregnancy-related illness to report in sick in the usual way, for which they are entitled to receive their usual sick pay.

Pregnancy-related illness includes:

  • Morning sickness (including nausea and vomiting)
  • Tiredness
  • Headache
  • Backache
  • Bleeding

 

If you are unsure whether the illness is pregnancy-related, you can ask the employee to provide a fit note from their GP. Pregnancy-related absence must be recorded separately from other sickness absences and should not count towards any review or trigger disciplinary points in your absence policies.

If the employee is off work because of a pregnancy-related illness within four weeks of their due date, maternity leave is triggered and begins automatically. This is unless you and your employee agree to delay it. Once their maternity leave starts, you must pay them maternity leave instead of sick pay.

 

Time off for attending pregnancy-related appointments

Pregnant employees are entitled to time off with full pay for antenatal appointments, including:

  • Medical appointments related to a pregnancy
  • Classes for pregnancy-related relaxation, health, or fitness
  • Sessions that support the employee’s wellbeing and mental health

 

Paid time off includes travel time to and from the appointment.

The law does not state specifically how much time can be taken off, but it must be a ‘reasonable’ amount. Pregnant employees generally require around ten antenatal appointments for a first baby,  or if this is their second or subsequent pregnancy, around seven antenatal appointments.

Following the first appointment, the employee must provide an appointment card or other evidence of their appointments if the employer requests evidence. It is important to remember that the above is an average, and every pregnancy is different.

For those employees who are adopting a child, by law, the main adopter is entitled to paid time off for up to five appointments, while the secondary adopter is entitled to take unpaid time off for up to two appointments.

The law surrounding surrogacy allows an employee to take unpaid time off for up to two antenatal appointments unless their contract says otherwise.

 

Does maternity discrimination cover miscarriage or fertility treatment?

Protection from maternity discrimination for miscarriage or fertility treatment is limited, although the employee may be protected under sex discrimination legislation. Unfavourable treatment, resulting in dismissal or redundancy because of fertility treatment or sickness absence related to it, is unlikely to be protected as maternity discrimination unless the employee is in the advanced stage of IVF.

However, if the employees inform you they have reached the embryo transfer stage, the law states that you must treat them as pregnant. From this stage, the employee has the same rights as any pregnant employee, including protection from discrimination because of pregnancy, leave and pay. It can take more than several weeks before a pregnancy test confirms if the embryo transfer has been successful, although the employee does not have to let you know whether it has been a success.

It is a complex area of law, and it is sensible to seek expert advice if you face such a situation.

 

Maternity & annual leave entitlement

Employees accrue holiday as usual during their time on maternity leave. This includes bank holidays. It is important to note that holiday leave and maternity leave cannot be taken at the same time, but it can be taken either before commencing maternity leave, or after it ends.

 

Maternity leave and redundancy

If you need to make an employee redundant whilst they are on maternity leave, you will need to proceed with caution to ensure the redundancy process is fair and that the employee is not being dismissed because of their pregnancy or maternity leave. You must be able to show that the redundancy is genuine and necessary, and you should consult and communicate with the employee as required for a fair redundancy process. Keeping in touch becomes particularly important if the employee is off work on maternity leave. The selection criteria for redundancy must be fair and not discriminatory and you also have to consider and offer suitable alternative employment.

Crucially, pregnancy or maternity leave must not be part of the reason you are making the employee redundant, or you risk a claim for automatically unfair dismissal.

 

Dismissing an employee whilst they are pregnant

If you dismiss an employee whilst they are pregnant, you must give them the reasons in writing. If the dismissal relates to disciplinary action, a fair and lawful disciplinary procedure must have been followed to avoid unfair dismissal complaints.

 

Pregnancy & recruitment

Job applicants are also protected from maternity discrimination. They are not obliged to disclose that they are pregnant during the recruitment process and employers are not allowed to ask job applicants if they are pregnant. Employers also risk discrimination claims if they do not offer a candidate a job because you believe they are pregnant.

 

Legal risks

If informal discussions fail to resolve issues or concerns, or the relationship has broken down, the employee can raise a grievance. You must handle the grievance fairly and lawfully. If the employee is unhappy with the result of the grievance, they can appeal it by following the procedure set out in the grievance policy.

If the above steps have not elicited a satisfactory outcome, the employee could decide to bring a claim in an Employment Tribunal after following ACAS’s mandatory early conciliation process. The time limit for making a claim to an Employment Tribunal for maternity discrimination is three months less one day from the last incidence of discrimination, or the end of a continuing act of discrimination.

The tribunal will follow a two stage “burden of proof” test. First, they will decide whether the employee has provided sufficient proof that an act of discrimination has taken place. Second, the burden of proof shifts to the employer to provide a non-discriminatory explanation for their actions.

Unlike in unfair dismissal cases, there is no ceiling on the amount of compensation an Employment Tribunal can award for pregnancy related discrimination. Compensation generally includes an award for injury to feelings and also considers any losses suffered, such as wages or pension entitlements. Awards for injuries to feelings can vary, and it can run into many thousands of pounds.

The Court of Appeal set out three bands of compensation guidelines for injury to feelings, commonly known as ‘Vento” guidelines. The most up-to-date figures (from 6th April 2021) are:

  • Top band for the most serious cases £27,400 – £45,600 (although this can be exceeded in exceptional cases)
  • Middle band: £9,100 – £27,400
  • Lower band (for less serious cases, for example, a one-off event or isolated incident of discrimination): £900 – £9,100

Tribunal claims are notoriously complex, expensive and protracted, with no guarantee of success. The best approach is to avoid discrimination issues arising by ensuring employer obligations are met, train managers on how to deal with pregnancy and maternity, promote positive communications with employees and to try to resolve issues before they escalate.

 

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.

 

Maternity discrimination FAQs

What qualifies as pregnancy discrimination?

Maternity discrimination happens when an employee is treated unfairly because they are pregnant, breastfeeding, or have recently given birth. The employee must suffer a disadvantage arising from the unfair treatment.

How do I prove maternity discrimination?

The test for deciding whether someone has been discriminated against because of their pregnancy or maternity is whether they have been treated unfavourably because of their pregnancy, a pregnancy related illness, being on maternity leave, or exercising the right to maternity leave.

What are some of the common types of discrimination experienced during pregnancy and maternity?

Singling out a pregnant employee or new mother for redundancy, mishandling requests for flexible working upon return from maternity leave, penalising a woman who is ill during pregnancy, or failing to provide the same opportunities are just some examples of maternity discrimination.

How much do you get for maternity discrimination?

There is no ceiling on the amount of compensation a tribunal can award for pregnancy related discrimination.

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