Pregnancy and maternity discrimination
The Equality Act 2010 makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.
Discrimination happens when a woman is treated unfavourably because of her pregnancy, pregnancy-related illness or she exercises the right to statutory maternity leave.
- It is unlawful to discriminate against an employee because they are pregnant or have a pregnancy-related illness. This covers the protected period which finishes when maternity leave ends or when the employee returns to work.
- Discrimination because of pregnancy or maternity is automatic discrimination. There is no need for the woman to show that she has been treated less favourably than a male employee, or a female employee who was not pregnant.
There are two main types of pregnancy and maternity discrimination.
Is when a female employee is treated unfavourably because of her pregnancy or maternity leave or because she is breastfeeding.
Direct discrimination by perception does not apply to pregnancy and maternity.
However, while there is uncertainty over whether the Equality Act would allow a claim of direct discrimination by association because of pregnancy or maternity, The Equality and Human Rights Commission's Code of Practice on Employment advises that an employee who is treated less favourably because of their association with a pregnant woman may have a claim for sex discrimination.
Treating an employee less favourably than others. For example, this might be because they have made or supported a complaint about pregnancy, maternity or breastfeeding discrimination.
Employers should ensure they have rules in place which are designed to prevent discrimination in:
- determining pay
- training and development
- selection for promotion
- discipline and grievances
- redundancy selection.
Equality and Human Rights Commission's #worksforme initiative
Acas fully supports a new awareness initiative launched by the EHRC to reduce pregnancy and maternity discrimination in the workplace. The new initiative is called #worksforme and more information is available at www.equalityhumanrights.com/worksforme.
Breastfeeding on returning to work
Acas guidance on Accommodating breastfeeding employees in the workplace [159kb].
At present, there is no legal right to time off for breastfeeding or expressing milk and there is no legislation requiring employers to provide specific facilities where employees can express milk. However, the Health and Safety Executive's advice is that employers are legally required to provide somewhere for pregnant and breastfeeding employees to rest. Toilets are not suitable for expressing milk. The employee should write to the employer to say they are breastfeeding. Ideally this should be done before they return to work.
For further information visit the Health and Safety Executive (HSE) website.
Redundancies for pregnant employees or those on maternity leave
When a genuine redundancy situation occurs, and where there is no suitable alternative work available for those on maternity leave, women can lawfully be made redundant, providing that pregnancy and maternity is not the reason for redundancy.
What the law says.
- During the protected period (the beginning to the end of the maternity leave) unfavourable treatment of a woman because she is pregnant or on maternity leave is unlawful.
- A woman on maternity leave has the right to return to the same job before she left or, if not possible at the end of the 52 weeks' maternity leave, a suitable alternative must be found.
- Selecting a woman for redundancy because of her pregnancy, maternity leave or a related reason is automatically unfair dismissal as well as being unlawful discrimination.
- Failure to consult a woman on maternity leave about possible redundancy is likely to be unlawful discrimination.
- A woman made redundant while on maternity leave must be offered any suitable alternative vacancy if there is one available. She doesn't need to apply for it.
Making a claim of pregnancy or maternity discrimination
If an employee feels they been discriminated against, they will be able to bring a claim to an employment tribunal. However, it is best that they talk to their employer first to try to sort out the matter informally.
Claimants who wish to bring a claim to a tribunal or appeal tribunal will have to pay a fee. The first fee will be paid to issue a claim and a further fee will be payable if the claim goes to a hearing. There are two levels of fee which will depend on the type of claim. Further information is available from Ministry of Justice - Employment Tribunal guidance.
Protected characteristics video
This video introduces and explains the nine protected characteristics.