Pregnancy and maternity discrimination

The Equality Act 2010 makes it unlawful to discriminate against someone, or treat them unfairly, because of pregnancy or maternity.

There are two main types of pregnancy and maternity discrimination - unfavourable treatment and victimisation.

Unfavourable treatment

Employees are protected against unfavourable treatment because of pregnancy or maternity. This means an employee or job applicant must not be disadvantaged because of their pregnancy or maternity. For example, they must not:

  • be subjected to unfair treatment because of pregnancy or maternity
  • suffer disadvantage because of pregnancy or maternity through the employer's policies, procedures, rules or practices
  • suffer unwanted behaviour because of pregnancy or maternity.

There is no need for an employee to compare treatment to how someone else is treated.

This protection also means that treatment which impacts on an employee negatively because of pregnancy or maternity may be discriminatory even though other staff are treated the same way.

Victimisation

Victimisation is when an employee suffers what the law terms a 'detriment' - something that causes disadvantage, damage, harm or loss because of things like:

  • making an allegation of discrimination
  • supporting a complaint of discrimination
  • giving evidence relating to a complaint about discrimination
  • raising a grievance concerning equality or discrimination
  • doing anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination. 

Victimisation can also occur because an employee is suspected of doing one or more of these things, or because it is believed they may do so in the future.

Differences between pregnancy and maternity discrimination and other protected characteristics

Pregnancy and maternity discrimination is broken down into discrimination for unfavourable treatment and victimisation. This is different to how the other protected characteristics are covered, but in most cases the protections are broadly similar or stronger for pregnancy and maternity.

Pregnancy and maternity discrimination protection mainly applies to a specific period of time known as the protected period. The law says that after the protected period in pregnancy and maternity has ended, an action after that time might still amount to unfavourable treatment because of pregnancy and maternity if it stemmed from an action or decision within the protected period. Or, after the period, a woman might claim her treatment because of her pregnancy or maternity amounted to less favourable treatment because of her sex.

Employees are sometimes treated unfairly because they are assumed to be pregnant, or because they are connected in some way to someone who is pregnant or taking maternity leave. They are not protected under the pregnancy and maternity protected characteristic but could be under other protected characteristics such as sex or sexual orientation.

Supporting employees through pregnancy and maternity

There are simple steps an employer should take once an employee says she is pregnant. To manage the situation, employer and employee should plan ahead and consider the needs and wellbeing of both employee and business.

  • There are special considerations to handle during the pregnancy, the maternity leave period and on the return to work. Employers should familiarise themselves with these as early as possible.
  • Agreeing a method of regular communication is essential. While it's particularly important to get this right during the maternity leave period, it's also important to make time to talk during pregnancy and the return to work too.
  • Be open minded and flexible with how the employee's work is carried out. This depends on the circumstances but might involve greater flexibility to handle morning sickness, arranging temporary cover during maternity leave and considering flexible working arrangements like job-sharing when the employee returns.

It is important to keep in mind that an employee who feels they have been treated well during their pregnancy and maternity is likely to be more loyal, engaged, flexible and productive.

Adaptations at work to help pregnant employees and new mothers

Risk assessments

An employer's general workplace health and safety assessment must specifically consider risks to:

  • a pregnant employee and the unborn child she is carrying
  • an employee who has become a new mother in the last six months, or is breastfeeding.

An employer should regularly review risks as the employee's pregnancy progresses.

Breastfeeding

Health and safety law says an employer must provide somewhere suitable for a breastfeeding employee to rest. But it doesn't say an employer must provide somewhere for them to breastfeed. However, it is not suitable to use toilets for breastfeeding.

An employer is advised to provide a private, hygienic and safe place for employees to breastfeed, and express breast milk and then store it somewhere cool (which doesn't need to be for breast milk only).

Managing absence from work because of pregnancy and maternity

An employer must not disadvantage an employee absent from work because of her pregnancy or maternity.

Depending on an employer's policy for managing absence, it may wish to record absences because of pregnancy or maternity. But, it must not include them in 'managing absence triggers' - these are the number of days' absence when managers would consider warnings, and ultimately dismissal, unless attendance at work improves.

Making a claim for pregnancy and maternity discrimination

If an employee feels they been discriminated against, they will be able to bring a claim to an employment tribunal. However, it's best they talk to their employer before doing this to try to sort out the matter informally.

There is no longer a requirement to pay a fee to make a claim to an employment tribunal or employment appeals tribunal. This was confirmed on July 26, 2017, by the Supreme Court which declared unlawful the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013.

Anyone who has previously paid fees to an employment tribunal or employment appeals tribunal is entitled to be reimbursed by the Government. Information on reimbursement should become available at GOV.UK - Employment Tribunal.

Through the Acas Helpline you can get advice on specific problems, and explore alternatives to an employment tribunal claim, such as Mediation, where appropriate.

Protected characteristics video

This video introduces and explains the Equality Act's nine protected characteristics, the areas of life protected against discrimination. They include sex, race, religion and disability.