When Can the Protected Period End After Pregnancy?

IN THIS SECTION

Pregnancy and maternity are one of nine “protected characteristics” under the Equality Act 2010; the others being age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. The law concerning discrimination in employment is set out in the Equality Act 2o1o. It takes a consistent approach across the protected characteristics where possible.

Part 5 of the Equality Act protects both job applicants and those “in employment” (under a contract of employment, a contract of apprenticeship or a contract personally to do work).

This includes employees, workers and a wider category of individuals who might otherwise be regarded as self-employed, provided that they are “in employment” and that their contract places them under a personal obligation to perform the work in question. Post-employment acts (such as a former employer giving someone a bad reference because they brought a claim) are also covered.​

Unlike the other eight protected characteristics, there is no definition of pregnancy and maternity. There is, however, reference to the “protected period”.

 

What is the protected period?

The protected period under the EqA 2010 is the period which starts when a woman’s pregnancy begins and ends:

  • If she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period, or (if earlier) when she returns to work after the pregnancy; or
  • If she does not have that right, at the end of the period of two weeks beginning with the end of the pregnancy.

If the unfavourable treatment takes the form of implementation of a decision that was taken during the protected period, it will be regarded as having taken place during that period even if the treatment does not in fact take place until after the protected period has ended (section 18(5), EqA 2010).

In Lyons v DWP Jobcentre Plus, the Employment Appeal Tribunal agreed with a tribunal’s decision that a woman, who was dismissed having been off sick with post-natal depression for several months after the end of her maternity leave, was not discriminated against because of pregnancy or sex. It reiterated that pregnancy discrimination under section 18 only occurs where a woman is treated unfavourably during the protected period.

Types of pregnancy and maternity discrimination

​Types of pregnancy and maternity discrimination are:
​​

Unfavourable treatment

It is discrimination to treat a woman unfavourably during the protected period because of her pregnancy or because of an illness she has suffered as a result of her pregnancy. It is also discrimination to treat a woman unfavourably because she is on compulsory maternity leave, or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

Unfavourable treatment in an employment context will frequently take the form of demotion, dismissal or the denial of training or promotion opportunities because a woman is pregnant or on maternity leave. It could also include taking periods of pregnancy-related sickness absence into account when deciding to trigger an absence management procedure.

It is rare for there to be direct evidence of discrimination and often the reason for the unfavourable treatment is not immediately apparent. In those cases it is necessary for the Tribunal to inquire into the Employer’s mental processes to determine the factual criteria that they have applied. These are sometimes referred to as “reason why” cases.

Applying a “but for” test” may assist in ascertaining the reason the alleged discriminator acted as they did, and so whether committed unlawful discrimination (that is, but for the fact that a woman was pregnant or taking maternity leave, would she have suffered the unfavourable treatment?). However, the answer to the “but for” question will not necessarily be determinative.

 

Direct discrimination

It is discrimination to treat a person less favourably than another person because of pregnancy or maternity. (It is likely to be preferable to pursue a claim under 1. or 2. above if the treatment occurred during the protected period).

 

Victimisation

It is unlawful discrimination where one person subjects another person to a detriment because the other person has done, intends to do, or is suspected of doing or intending to do, a “protected act” which in summary, is an act involving asserting rights under the Equality Act (such as raising a grievance or submitting a claim) or assisting someone else to do so (such as being a witness in a claim).

 

Discrimination by colleagues

If a person discriminates against another person, then the employer may be held vicariously liable unless it has taken reasonable steps to prevent such conduct from occurring. The discriminating employee may also be held personally liable.

 

Dismissal during the protected period 

There are also separate statutory rules in the ERA 1996 protecting employees from dismissal and detriment (except in relation to pay) where the principal reason is related to pregnancy or maternity leave, including in relation to dismissal by redundancy while pregnant.

As well as being unfavourable treatment employers should be aware that dismissals for reasons connected with pregnancy, childbirth, or statutory maternity pay are automatically unfair under s99 ERA 1996 and employees bringing such claims do not need to have worked for the 2 year qualifying period required by “ordinary” unfair dismissal claims.

Deadlines for discrimination claims

A claim for pregnancy and maternity discrimination (or any discrimination) must normally be brought within 3 months of the act that being complain about.

Where there is a series of acts, or “conduct extending over a period” the three months period runs from the end of the last act in the period. It can sometimes be difficult to identify whether particular acts amount to conduct extending over a period, particularly if the period is long or there are lengthy gaps between the acts.

An employment tribunal has the discretion to extend the time limit to pursue a discrimination claim where it considers that it is just and equitable to do so.

Compensation for discrimination claims 

If a successful pregnancy and maternity discrimination claim is made, an employment tribunal will generally make an award of compensation for any financial loss suffered as a result of the discrimination, and an award for injury to feelings. Occasionally an employment tribunal may also make an award for personal injury arising from the discrimination. Injury to feelings awards are in three bands, known as the Vento Bands, which set out the range of injury to feelings awards for varying levels of seriousness. The employment tribunal may also make an appropriate recommendation.

There is no cap on compensation in discrimination claims but that does not mean that all claims are valuable. The amount of an award will often largely be determined by the level of financial (usually pay) loss suffered, or likely to be suffered in the future, as a result of the discrimination.

 

Supporting employees through the protected period

There are simple steps that an employer must take once their employee informs them of their pregnancy. To manage the situation, therefore, the employer must plan ahead after considering the wellbeing and needs of both employee and business.

First, it is essential for the employers to agree to a method of regular communication. While it’s particularly important to get this right during the protected period, it’s also helpful to communicate during pregnancy and after childbirth.

It is also important to be open-minded and flexible with the work responsibilities of the employee. Depending on the circumstances, employers must be flexible while handling issues like arranging temporary cover during maternity leave, morning sickness, pregnancy related illness and flexible working arrangements.

 

Employee rights on return to work

Employers risk claims of pregnancy and maternity discrimination if the worker is not permitted to return to the same job on no less favourable terms and conditions as before, or if they fail to offer them a suitable alternative role which is available. The worker may also have automatic unfair dismissal claims (if there is a dismissal) and/or unlawful detriment (if there is no dismissal).

Employees may also have the right to make a flexible working request, provided they meet the eligibility criteria, for example to rearrange their working hours in order to ensure childcare and maximise time with their child. Whilst employers are not obliged to allow the requests, they have a duty to deal with requests in a reasonable manner.

In the case of Fidessa Plc v Lancaster, it was held that an employee, who changed to part-time working on her return from maternity leave and who was subsequently made redundant, had been subject to indirect sex discrimination. This was due to a two-fold “provision, criterion or practice” of having to undertake work after 5pm and doing so at the workplace rather than at home. This was considered to be a disadvantage more likely to be suffered by women given they as a group predominantly have a requirement to exercise childcare functions and collect children from nursery at the end of the working day.

 

Adaptations at Work to Help Pregnant Employees

Risk Assessments

It is important to make sure that the general workplace is safe for both pregnant employees and new mothers. Therefore, it is essential that employers must regularly conduct health and safety assessments to mitigate risks for any pregnant employee or an employee who has given birth in the last six months or is breastfeeding.

 

Breastfeeding at work 

According to UK employment law, it is the responsibility of the employer to provide somewhere suitable for a breastfeeding employee to rest. It is important that the employer provides a private, safe and hygienic place for their employees to breastfeed, express breast milk and then store it somewhere cool.

 

Managing Absence From Work of Pregnant Employees

Whether it is during the protected period or outside, the law directs employers not to take advantage of an employee’s absence from work because of her pregnancy or maternity. Depending on their work policy, employers may wish to record all pregnancy and maternity leaves. However, it must not include them in ‘managing absence triggers’. These are the number of days of absence when managers would consider issuing warnings, and ultimately termination of employment unless attendance at work for that employee improves.

 

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.

 

Protected period FAQs

What is protected period in pregnancy?

The protected period is when mothers are protected from discrimination by the provisions of the Equality Act 2010. The protected period applies throughout pregnancy until the end of the maternity leave period or until the worker returns to work, if earlier. For workers who are not entitled to maternity leave, the protected period ends two weeks from the date of childbirth.

What does the Equality Act 2010 say about pregnancy and maternity?

Pregnancy and maternity are listed as protected characteristics under the Equality Act 2010, meaning workers are protected from discrimination from when they become pregnant until either their right to maternity leave ends and they return to work, or 2 weeks after the child is born if they are not entitled to maternity leave.

Can you not employ someone because they are pregnant?

It is unlawful to discriminate against someone, including job applicants, because they are pregnant, or because of illness related to their pregnancy.

Last updated: 14 September 2022

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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