Maternity and pregnancy discrimination claims

• The woman's (B) pregnancy: the employer (A) must know or suspect that the B is pregnant;  
• B's pregnancy related illness: the treatment must be on grounds of illness that is as a result of her pregnancy; it could include a back condition that is made worse by pregnancy;
• B's absence on compulsory maternity leave: this is the 2 week period after the birth, or 4 weeks for factory workers.  Both employees and workers are protected during this period and during pregnancy;
• B's maternity leave: this only applies to those entitled to maternity leave, i.e. employees.  It covers the taking of leave, seeking to take leave or having taken leave.
   

Protected period

The period when the woman is protected from unfavourable treatment because of pregnancy/maternity is known as the protected period.  This starts from the beginning of the pregnancy (or when suspected) and ends at the end of maternity leave or on return to work (if earlier).

If a discriminatory decision is taken during B's pregnancy or pregnancy related sickness but implemented after this period it is still treated as taking place during the protected period and so will be unlawful.

Note:

• It is not necessary to compare B's treatment with that of a man - unlike other areas of discrimination;
• Preventing unfavourable treatment may mean that women in B's position may need to be treated more favourably, e.g. they cannot be disadvantaged because of pregnancy related sickness, however long;
• The treatment can never be justified by the employer, however, inconvenient B's pregnancy, pregnancy related sickness or maternity leave might be;
• If the treatment is not on grounds of pregnancy/maternity it may still be sex discrimination. This may cover discrimination against the partner/husband of a pregnant woman, e.g. a man is treated less favourably because his wife is pregnant and the employer is worried he might take paternity leave;
• Pregnancy/maternity need not be the only reason for the treatment, but it must be a substantial reason.

Pregnancy discrimination includes unfavourable treatment in relation to:

• Opportunities such as allocation of work, training, promotion and other benefits,
• Pregnancy related sickness (e.g. being disciplined or marked down on performance).
• Sick pay in that pregnancy related sickness must be treated for the purposes of pay as any other sickness;
• Discretionary bonus relating to the period prior to her maternity leave; this should not be adversely affected because of pregnancy or pregnancy related sickness;
• Dismissal including redundancy of B because she is pregnant or, absent with a pregnancy related illness . Redundancy procedures, consultation and criteria must not disadvantage B;
  
  Maternity discrimination includes unfavourable treatment in relation to:

• Denial of right to return to same job after leave: If B is not allowed to return to the same job after her maternity leave and this is because she has been on maternity leave, this will be discrimination;
• Denial of a pay rise because of her maternity leave or pregnancy;
• Failure to consult on redundancy or major changes to the workplace;
• Promotion or job opportunities;
• Appraisals: A woman should be appraised as normal,  although in practice the appraisal could take place before or after maternity leave.
  
  The one exception to this non-discrimination rule is that a woman on maternity leave is not entitled to her normal pay unless this is provided for by contractual maternity pay.  She may be entitled to statutory maternity pay (SMP) provided she has been employed for at least six months and earning more than the lower earnings limit. She is entitled to pension contributions based on her normal salary but only during the period of paid maternity leave.  She has to pay contributions based on her income.

Victimisation: It is unlawful to treat a worker unfavourably because s/he has complained of pregnancy/maternity discrimination, brought a claim or been a witness for a complainant.

Note: there is no prohibition of indirect pregnancy/maternity discrimination or harassment.  But, harassment is likely to be unfavourable treatment because of pregnancy/maternity.

The Leigh Day employment team has particular expertise in this area. They have acted for hundreds of women disadvantaged because of pregnancy/maternity situations, often settling cases for substantial compensation.

Specific statutory rights

In addition to protection from discrimination, employees have rights and protection under the Employment Rights Act 1996.  In brief these are:
Pregnancy

• An employee is entitled to paid time off during working hours to attend ante natal appointments;
• An employer must carry out a risk assessment  to assess any health and safety risks to the mother or baby.  If there is a risk, the employer must remove the risk, offer the employee another suitable job (on the same pay and terms) or if neither are possible, suspend  on full pay.

Maternity leave

•  An employee is entitled to 52 weeks maternity leave, the first 26 weeks being called ordinary maternity leave (OML), the second 26 weeks additional maternity leave (AML).  Employees must comply with prescribed notice provisions.
• An employee is entitled to return to exactly the same job after OML;
• An employee is entitled to return to the same job after AML unless the employer can show it is not reasonably practicable in which case she is entitled to a suitable alternative job. BUT it will be unlawful discrimination if the reason for the change in job is because of her absence on maternity leave;
• Protection from detriment and dismissal on grounds of seeking to take or taking family leave.
• An employee on maternity leave is entitled to:

1. Statutory maternity pay during the first 39 weeks of her maternity leave, provided she complies with the qualifying conditions.
2. continuous service during her maternity leave for statutory rights (such as protection from unfair dismissal) and contractual rights,
3. her terms and conditions during leave (except pay); this includes contractual holiday, private medical insurance, private use of a company car, reimbursements of professional subscriptions, mortgage subsidy,
4. the employer’s pension contributions during any paid leave,
5. be considered for a pay rise or promotion in the same way as other employees,
6. any pay rise awarded during maternity leave,
7. a bonus in relation to the 2 week period after the birth (ie her compulsory maternity leave period); she is not entitled to it for the remaining leave;