Pregnancy or maternity discrimination

Pregnancy or maternity discrimination is a specific type of discrimination, which is made unlawful by the Equality Act 2010 (the ‘EA’) (and before that the Sex Discrimination Act 1975). It is separate and distinct from a claim for sex discrimination.

The EA covers discrimination against someone that is related to pregnancy or maternity throughout employment, from the start of the recruitment process, through vocational training, and the period of employment itself. Claims that can be made under the EA for pregnancy or maternity discrimination must be on the basis of direct discrimination or victimisation – indirect discrimination does not arise here, nor doesharassment.

The legislation protects a wide range of ‘workers,’ apprentices, company officeholders such as directors, police, barristers, those who have been sent by their employer to work for another employer, and employment agencies, among many others. Small employers don’t have an opt out of this legislation.

Section 18 of the EA makes unfavourable treatment of a woman from the start of the pregnancy to the end of maternity leave (the ‘protected period’) direct discrimination where it relates to that woman’s pregnancy or an illness that is the result of thepregnancy. This could either be a decision that is communicated to the woman during the protected period, or an event that took place during the protected period but was only actioned after it. For example, if a woman is not promoted at the end of her maternity leave for missing a crucial meeting scheduled during her maternity leave this will still count as being within the protected period. Here, an employer must have known – or suspected of the pregnancy.

There will also be direct discrimination if there is unfavourable treatment as a result of a woman taking – or trying to take – maternity leave, or where someone has taken or tried to take maternity leave, or where compulsory maternity leave is taken i.e. the first two weeks after the birth of the child (four weeks for a woman who works in a factory).

The protection does not extend to anyone who has suffered unfavourable treatment for any other reason other than their own pregnancy, so for example where there is unfavourable treatment because of a relative’s pregnancy this will not count as pregnancy or maternity discrimination (but could be sex discrimination).

Whilst other forms of discrimination often require a ‘comparator’ – someone whose life is not materially different from the person claiming discrimination ‘but for’ the factor that is being discriminated against (for example ‘but for’ being gay) – but the EA states this is not required in these circumstances.

A claim for Victimisation can be made by anyone who is involved in EA proceedings. This may be someone who is bringing proceedings themselves, providing evidence or information relating to proceedings, making allegations of discrimination (for example making a complaint to an employer), or doing anything by reference to the legislation to the person whose conduct is potentially discriminatory (or any other person). As long as they are done in good faith, these acts are all considered ‘protected acts’ and where someone receives unfavourable treatment as a result of doing one of these this will constitute victimisation.

Maternity related pay

Other than statutory maternity pay, an employee may be entitled to maternity-related pay, depending on the provisions in that employee’s contract.  Often contractual maternity provisions are more generous than the statutory scheme.

There is no requirement for a comparator in establishing maternity related pay – any pay increase that is received or would have been received, or any bonus that is or would have been or is awarded if an employee was not on maternity leave must be taken into account when calculating this pay. This is called the ‘Maternity Equality Clause’ and is automatically taken as a part of an employee’s contract when that employee starts their leave.

Making a claim

An EA pregnancy or maternity discrimination claim needs simply to establish ‘clear facts’ that may be used by an Employment Tribunal to conclude that the discrimination has taken place. An employer (or other respondent) must then justify the course of action and give a reason for it that is not motivated by that person’s pregnancy or maternity. If such a justification cannot be supplied, the Tribunal will infer discrimination. The same inference will be drawn if an employer has not complied with an relevant statutory Codes of Practice.

Where a pregnancy or maternity discrimination issue is raised, there is usually a requirement to follow the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk) and there are some serious penalties for both employers and employees who don’t follow the Code. For example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

The timing of a claim for pregnancy or maternity discrimination is important as this is usually required to be made within three months less one day of the behaviour that is complained about, or where the conduct was ongoing, on the last day of that behaviour or conduct. The claim will be taken to an Employment Tribunal and this body has the power to extend any time limits where it is just and equitable to do so, but is unlikely to do so in every case.

Where a pregnancy or maternity discrimination complaint is made, an employee is entitled to use a questionnaire to obtain information from an employer about the circumstances surrounding the potential discrimination. The questionaire is served before, or within 28 days of, a claim being made to an Employment Tribunal. An Employment Tribunal can infer unlawful discrimination from a questionnaire that is either not returned, or carefully avoids giving any information, so it is important for an employer to spend time filling this document out carefully.

Claims for conduct before 6th April 2009 – or through that date – where a claim has been lodged with an Employment Tribunal, could be subject to different rules.

Claims for conduct on or before 1 October 2010 should be brought under the EA and previous legislation – the Sex Discrimination Act.

Claims for conduct after 1 October 2010 should be brought under the EA

Outside of the workplace

Pregnancy and maternity discrimination is also unlawful with respect to a situation involving services and public functions, education, premises and associations (section 17 EA). This prohibits

– Unfavourable treatment of a women because of her pregnancy.

– Unfavourable treatment because a woman is breastfeeding.

– Less favourable treatment in the 26 weeks from the birth resulting from a woman having given birth (including if the child is stillborn) or is breastfeeding.

Breastfeeding

The EA prohibits unfavourable treatment because a woman is breastfeeding and no comparator is required to establish this.

In addition, under section 13 of the EA, there will be sex discrimination where a woman is treated less favourably for breastfeeding a child more than six months old. Because the point of comparison is ‘less favourably’ a comparator is required i.e. someone who is ‘not materially different’ but for the fact that they are not breastfeeding.

Women can lawfully breastfeed in public – for example in shopping centres and restaurants – and it is unlawful to attempt to prevent this.

Health and safety

A service provider concerned about health and safety may:

– Refuse a pregnant woman service if the pregnancy creates a risk to her health and safety if they would refuse that service to someone with other physical conditions service if there is a reasonable belief of risk to health and safety (for example refusing to allow a pregnant woman on a fairground ride where someone with a condition such as epilepsy might also be refused).

– Provide the service on certain conditions to remove or reduce the risk.

Victimisation

Victimisation or discrimination will occur where the person or body providing the service refuses to provide it, provides a worse quality service (for a discrimination claim), terminates the service provision, or subjects the person in question to any detriment.