It’s hard to believe, but pregnancy and maternity discrimination are on the rise.

These are the findings in a report by the Women and Equalities Committee which has prompted the Government to consult on different options to ensure there are sufficient protections for pregnant women and new mothers. Discrimination claims are very costly and damaging to your organisation’s reputation, so it’s essential that you understand the law to minimise the risk of claims.

Statistics

According to a report from the Eqality and Human Rights Commission:

  • 10% of mothers found their employer discouraged antenatal appointments;
  • 20% of mothers experienced pregnancy related harassment; and
  • 11% of mothers were either dismissed, made redundant (when others had not) or felt compelled to leave.

Equality Act

Pregnancy and maternity are “protected characteristics” included in the Equality Act 2010.

This means it is unlawful for an employer to treat someone less favourably because she is pregnant, suffering a pregnancy related illness, on compulsory maternity leave or exercising or seeking to exercise any of her statutory rights, such as ordinary and additional maternity leave.

In general, the protection from pregnancy and maternity discrimination for employees covers the whole “protected period”, which is from the start of the woman’s pregnancy to the end of the her maternity leave.

0 %
Percentage of mothers experiencing pregnancy related harassment

Test for pregnancy or maternity discrimination

When seeing whether a female employee has suffered discrimination because of her pregnancy or maternity, the test is whether they have been treated unfavourably or put at particular disadvantage. There is no requirement to demonstrate that the employer has treated the employee less favourably than a real or hypothetical comparator (for example, a non-pregnant member of staff). This doesn’t mean you can’t dismiss a pregnant employee or new mum but that you have to ensure you are being fully compliant at all times. Seeking support from a HR expert will ensure you stay on the right side of the law.

Free guide to Maternity Leave and Pay

Discover how to handle issues related to maternity leave

Pregnancy and maternity discrimination examples

You could be found guilty of discrimination if you:

  • Do not offer them a job because they are pregnant;
  • Do not carry out a General Risk Assessment or fail to act on what you uncover from the assessment to ensure the health and safety of the employee and their baby;
  • Fail to warn female employees on maternity leave or who are sick due to pregnancy of a potential redundancy situation;
  • Select a woman for redundancy because she’s either pregnant or on maternity leave;
  • Do not promote someone or give them training opportunities because they are pregnant or on maternity leave;
  • Reduce their workload or refuse to give them certain projects because of their pregnancy;
  • Refuse to give them a pay rise while they are on maternity leave;
  • Dismiss the employee because the temporary worker hired to cover maternity cover is doing a “better” job; or
  • Dismiss the employee for suffering a pregnancy-related illness.

How to avoid maternity and pregnancy discrimination claims

Here are our five top tips:

1. Consider flexible working requests

The right is to request flexible working – it doesn’t mean that employees are entitled to be automatically granted it. Nevertheless, you need to consider flexible working requests in a reasonable manner and can only refuse a request for a clear business reason. Read everything you need to know about flexible working now.

Irrespective of the employee’s length of service, an employee can make a claim for unfair dismissal if the main reason for firing them is the fact that she is pregnant or on maternity leave.

2. Take into account their health and safety

Make sure your General Risk Assessment covers the risks that female employees of childbearing age are exposed to and any risks to new or expectant mothers in the workplace. You will then need to act on the results of the risk assessment – this could mean varying their hours or working conditions, finding suitable alternative work or even suspending the employee with full pay.

Free guide to Maternity Leave and Pay

Discover how to handle issues related to maternity leave

3. Think carefully who you select for redundancy

You cannot select people for redundancy based on a discriminatory reason e.g. being pregnant, being on maternity leave or exercising any of their statutory rights, such as right to time off for antenatal appointments.

All the scoring criteria you use for redundancy must be fair and objective. You need to be careful when considering an employee’s absence record – absence due to maternity leave or pregnancy should not be counted. You should also take into account the impact pregnancy can have on employees when looking at their performance while they are pregnant.

4. Document the reason for dismissal

Irrespective of the employee’s length of service, an employee can make a claim for unfair dismissal if the main reason for dismissing them is the fact that she is pregnant or on maternity leave. Make sure the reason for the dismissal is wholly unconnected to the employee’s pregnancy or maternity leave and that you have clear documentation that confirms the reason.

5. Keep talking to the employee while they are off work

The law allows employers to make reasonable contact during maternity leave, for example to inform them of upcoming events, training courses, job vacancies, promotions, potential redundancy situations or reorganisations.

Before their maternity leave starts, it is useful to discuss with the employee what their preferred method of contact while on leave is and how often you are going to speak to them.

Keep up to date with Employment Law

Director of Legal Services

James Tamm

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