As an anecdotal observation from practice, one of the protected characteristics that appears to suffer some of the most overt discrimination is pregnancy and maternity. It was therefore with sadness, but no great surprise, to see the results of a study from Pregnant then Screwed over the summer, which suggests based on a survey of 24,000 parents that:
- More than half of all mothers have faced some form of discrimination when pregnant, on maternity leave or upon their return, and
- One in five mothers have left their role following a negative or discriminatory experience.
Some of the findings were particularly shocking, with one in 61 pregnant women reporting that their manager has made suggestions of terminating their pregnancy.
As legal advisers for both employers and senior executives, we see “behind the curtain” of discriminatory acts, and would make the following observations:
- Some are intentional, or a result of indifference or complacency.
- Some are well-meaning but misguided (eg not wanting to “bother” an employee on maternity leave with a potential redundancy process or preserving her role essentially in name only, for her then to find a fait accompli when she returns to work).
- Some are simply the result of confusion or lack of understanding about the requirements.
This blog therefore intends to provide a reminder of the key entitlements for women who are pregnant or on maternity leave, and some tips for both employers and employees on mitigating the risk of discrimination.
Protection against pregnancy discrimination during the protected period
The Equality Act 2010 provides women with a “protected period” in relation to pregnancy, which runs from the date on which a woman falls pregnant until her return from her maternity leave (or two weeks after the end of the pregnancy if there is no entitlement to ordinary and additional maternity leave).
Note that, even after the protected period, protections from sex discrimination will be relevant to new mothers.
Protection against less favourable treatment
Women are protected against unfavourable treatment:
· Because they are pregnant,
· Because of a pregnancy-related illness,
· Because they are on maternity leave, or
· Because they have taken or have asked to take maternity leave.
No comparator is required (ie the test is “unfavourable” not “less favourable” treatment).
Right to return to her old role at the end of maternity leave
Women are entitled to return to the same job on the same terms and conditions after their maternity leave (this applies to ordinary maternity leave of the first 26 weeks). The terms of employment must be the same as, or not less favourable than, they would have been had the employee not been absent. This means women should benefit from improvements that would have been made during her absence, such as pay rises.
If additional maternity leave and/or shared parental leave was taken (more than 26 weeks) and it is not reasonably practicable to offer the same job, a similar job can be offered but the job cannot be on worse terms than before.
Protection from being dismissed due to pregnancy
Women are protected from being dismissed because they are pregnant. Under the Act, it would be classed as automatic unfair dismissal and discrimination if the dismissal is not for a fair reason unrelated to the pregnancy.
An employee who has been dismissed due to pregnancy can bring a claim of automatic unfair dismissal without having to show that they have worked the required two years of service.
Employers can be ordered to pay an uncapped award of damages.
|Protecting pregnant workers and new and breastfeeding mothers at work (including health and safety risks)||
Employers should assess the risks to expectant mothers and their babies. It is a common misconception that this assessment should occur when the employer is notified of a pregnancy, but in fact the obligation is anticipatory: it should be done in advance where employees include those who might become pregnant.
Risks could be caused by:
· Heavy lifting or carrying,
· Standing or sitting for long periods without adequate breaks,
· Exposure to toxic substances,
· Long working hours.
Where there are risks, the employer should take reasonable steps to remove them, for example offering the employee different work or changing their hours. If there is no suitable alternative work or the employee reasonably refuses the alternative work, it may be necessary to suspend the employee on full pay (this is quite unusual, however).
Note also that the risk assessment should extend to breastfeeding mothers as well. There is a requirement under the Workplace (Health, Safety and Welfare) Regulations 1992 that employers must provide a suitable place for pregnant and breastfeeding workers to rest (including lie down), and toilets don’t count!
There is not a specific entitlement to time off or facilities for breastfeeding, but this is encouraged both by the Health and Safety Executive, and under the Equality and Human Rights Commission Statutory Code of Practice. A failure to make accommodations could also give rise to indirect sex discrimination risks.
Breaches of health and safety law may also be discrimination under the Equality Act 2010, depending on the circumstances.
Protection from redundancy
While it is possible for women who are pregnant or on maternity leave to be made redundant, selecting an employee for dismissal on grounds of redundancy will of course be automatically unfair and discriminatory if it is for a reason connected to pregnancy.
Where suitable alternative roles are available, employees who are made redundant during either their ordinary or additional maternity leave have the right to be offered one of those roles in priority to other employees.
Note that there are changes on the horizon which will effectively extend the protections around redundancy to those returning from family leave: see our blog Employment law developments: what’s the latest?.
Tips for Employers
- The rules around pregnancy, maternity and family leave in general are complex. Having clear and up-to-date policies will help support your organisation to make the right decisions.
- When decisions are taken regarding an employee (whether relating to pay, promotion or termination), document clearly the reasons and rationale for the decision. This may help you to demonstrate a lawful basis for the decision if you are later challenged.
- Keep up with changes to the law: this is an evolving area of law and changes to the law are not uncommon (for example, note the introduction of paid neo-natal leave and time off for fertility treatment on the horizon).
- Train managers on the rules and requirements, as well as on your expectations of them. Make sure that they have sufficient resources and support properly to support their teams: family leave can require some flexibility and planning, and managers who are under strain and under-supported may be more prone to treating pregnant women and new mothers unfavourably and creating legal and cultural risks for the organisation.
- Culture is important: many women carry a deep-seated fear of the implications of pregnancy on their careers and work. Complying with the law is the bare minimum, but if you are only willing to do the bare minimum you may lose talented female employees and new mothers, who do not feel supported in the round.
- Do not forget about the partners: empowering partners of new mothers also to take family leave, and normalising time out and flexibility for all parents, not just mothers, will help to create an environment where mothers are not the “outliers” and will help to create more of an equal playing field.
Tips for Employees
- Knowledge is power: familiarise yourself with your rights and entitlements. This area of law is complex and (whether intentionally or not) employers may not always get things right. Being in a position where you can raise questions or identify errors will help to protect your position.
- Do not be afraid to speak up: being honest about your experiences can help to drive change.
- You are protected if you raise concerns regarding potential discrimination or breaches of legal obligations. If you face retaliation for doing so, that is in and of itself a basis for a legal claim of victimisation.
- Keep written records: if you feel your employer is not doing the right thing and you are not able to resolve the issues informally or through internal grievance processes, you may have to resort to bringing a claim. A written aide-memoire of events will help you, particularly when there are long wait times for Tribunal hearings.
- Seek advice early: if you are facing a difficult situation there are steps you can take early to protect yourself and potentially to find a resolution.
With thanks to Aishah Syeda, a current Legal Assistant in the Employment team, for her help in preparing this blog.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, September 2023