Nothing sours the joy of expecting a child more than realising you’ve been treated unfairly at work because of your pregnancy or worrying that you might be discriminated against as a result of sharing your happy news with work colleagues. Sadly, such experiences of pregnancy discrimination are more common than might be imagined.
While the law provides protection against pregnancy discrimination this is often little understood by those it is intended to benefit. In addition, unscrupulous employers may get away with unlawful behaviour as women who are pregnant or on maternity leave are not in an ideal position to be enforcing their rights via the employment tribunal – they have other priorities, may be unwell or just understandably, absorbed with their new born.
What is pregnancy discrimination?
The Equality Act 2010 provides protection against harassment discrimination because of a woman’s pregnancy or in connection with her maternity leave. This is one of the eight special characteristics which are protected under the Act (others include sex, race and disability etc.).
An employee is protected from when she becomes pregnant until after she returns to work from maternity leave.
Pregnancy discrimination occurs when a woman is treated unfavourably because of her pregnancy or due to an illness suffered by her as a result of it. For example, this would cover situations where an employer tried to impose its normal absence management process on a pregnant employee who was off sick due to a pregnancy related reason.
Discrimination will also occur where a woman is treated unfavourably because she is exercising, trying to exercise or has exercised her right to take ordinary or additional maternity leave. Such discrimination can occur before, during or after maternity leave. This might include a situation where an employee was told she could not carry over her holiday entitlement as she had been on maternity leave.
There is no need for a woman to compare her treatment to someone else. All she needs to do is demonstrate that:
- she has been treated unfavourably; AND
- this was due to her being pregnant or on maternity leave
Unfavourable treatment is not the same thing as less favourable treatment (which applies in other types of discrimination claims). It is a lower hurdle and essentially means placing a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person.
It is different from a ‘detriment’ and is to be measured against an objective sense of that which is adverse as compared with that which is beneficial. A woman has been treated unfavourably if they are not in as good a position as others generally would be. However, the Courts have held that treatment which is advantageous cannot be said to be ‘unfavourable’ merely because it is thought it could have been more advantageous.
Pregnancy discrimination might involve:
- being deprived of benefits
- being excluded from training or social events
- not being put forward for promotion
- not being kept informed of important developments while on maternity leave
- being unfairly selected for redundancy
- not being offered a suitable alternative role if made redundant while on maternity leave
Pregnancy & unfair dismissal
If you are dismissed during pregnancy or maternity leave you are entitled to written reasons from your employer and should always ask for these if not forthcoming. This could be useful evidence in any subsequent claim.
A woman will be automatically unfairly dismissed if she is dismissed because of her pregnancy or because she was on maternity leave or had availed herself of the benefits of maternity leave. The normal two year qualifying period does not apply in such circumstances and the normal cap on compensation does not apply.
Who is protected against pregnancy discrimination?
All employees, casual workers, agency workers and contractors are protected by pregnancy and maternity discrimination law from the first day of their employment. There is no need to resign to bring a claim in the employment tribunal. Compensation for discrimination is potentially unlimited but will consist of economic loss (which can be shown) and/or an award for injury to feelings.
Must I tell my employer that I am pregnant?
The latest date at which you have to tell your employer that you’re pregnant is the 15th week before your due date. This is also the latest date for giving notice to take maternity leave. Of course, you may choose to tell your employer earlier, or indeed it may become obvious. It is generally a good idea to let someone at work know fairly soon, even if confidentially, in case you are taken ill.
I think I’m being discriminated against
If you think you’re being discriminated against, it’s important to keep a detailed record of the behaviour or treatment you believe is unfair. It can be very useful to make notes of what people have said to you and keep copies of emails and letters in case these are needed as evidence later on.
What happens if I’m ill during my pregnancy?
You are entitled to receive the same sick pay as other employees if you are ill during your pregnancy (apart from the last four weeks of pregnancy when your maternity leave and pay will be triggered), so check your contract to see how much sick pay you are entitled to or ask your employer. Your employer must record any pregnancy-related sickness absence separately from other sick leave, in order to ensure that pregnancy-related sickness absence is ignored for the purposes of an absence management procedure.
Health and safety issues
You may need to tell your employer about your pregnancy earlier than 15 weeks before your due date, in order to ask for health and safety measures to be put in place. As soon as you’ve told your employer, they need to assess any risks to you and your baby (such as heavy lifting or working long hours). If they can’t mitigate the risks, they should move you to another role or suspend you on full pay.
Employers should also assess their breastfeeding facilities for returning mothers. Although there is no legal requirement to provide suitable breastfeeding facilities or suitable facilities for storage of expressed breast milk at work, it is recommended that employers do.
What are my other pregnancy rights?
In addition to protection from discrimination and dismissal, when you are pregnant you also have certain rights. This includes:
- paid time off work for antenatal care
- ordinary and additional maternity leave (a total of 52 weeks)
- statutory maternity pay or maternity allowance
You are entitled to paid time off to attend antenatal care appointments during work hours and the right not to be unreasonably refused time off to do so. However, this does not include women undergoing fertility treatment and IVF. All women are entitled to maternity leave regardless of their length of service with their employer.
Redundancy during maternity leave
Dismissing a woman or selecting her for redundancy for a reason connected with her pregnancy is deemed to be automatically unfair. This includes situations where the employer thinks you are not going to return to work after your maternity leave.
However, you can be made redundant fairly on maternity leave, if pregnancy or anything related to it, is not the reason you were selected. Your employer must be careful to follow a fair procedure in such circumstances. This will involve careful consideration of whether there are any suitable alternative roles available to offer a woman on maternity leave (including at an associated companies). Women on maternity leave ‘go to the front of the queue’ for such vacancies and should not be made to do a competitive interview for such positions.
Claiming pregnancy discrimination
If you think you may have suffered discrimination due to pregnancy, if possible, you should try to talk to your employer or manager about it first. Alternatively, follow your employer’s grievance procedure.
If you’re not able to resolve it, you should consider taking legal advice. A professional can advise you on the merits and strengths of your claim and may be able to resolve matters with your employer without the need to proceed further.
If you’re still unable to resolve matters, and want to make a claim against your employer in the employment tribunal, you have to bring a claim within three months (less one day) from the date of your dismissal or the act or series of acts you are complaining about. You will also have to contact ACAS who will try and help you to resolve things before you issue your claim.