Pregnancy and maternity discrimination

The Equality Act 2010 makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.

Discrimination happens when a woman is treated unfavourably because of her pregnancy, pregnancy-related illness or she exercises the right to statutory maternity leave.

Key points

There are two main types of pregnancy and maternity discrimination.

Direct discrimination

Is when a female employee is treated unfavourably because of her pregnancy or maternity leave or because she is breastfeeding.

Direct discrimination by perception does not apply to pregnancy and maternity.

However, while there is uncertainty over whether the Equality Act would allow a claim of direct discrimination by association because of pregnancy or maternity, The Equality and Human Rights Commission's Code of Practice on Employment advises that an employee who is treated less favourably because of their association with a pregnant woman may have a claim for sex discrimination.

Victimisation

Treating an employee less favourably than others. For example, this might be because they have made or supported a complaint about pregnancy, maternity or breastfeeding discrimination.

Employers should ensure they have rules in place which are designed to prevent discrimination in:

Equality and Human Rights Commission's #worksforme initiative

Acas fully supports a new awareness initiative launched by the EHRC to reduce pregnancy and maternity discrimination in the workplace. The new initiative is called #worksforme and more information is available at www.equalityhumanrights.com/worksforme.

Breastfeeding on returning to work

Acas guidance on pdf  Accommodating breastfeeding employees in the workplace [159kb].

At present, there is no legal right to time off for breastfeeding or expressing milk and there is no legislation requiring employers to provide specific facilities where employees can express milk. However, the Health and Safety Executive's advice is that employers are legally required to provide somewhere for pregnant and breastfeeding employees to rest. Toilets are not suitable for expressing milk. The employee should write to the employer to say they are breastfeeding. Ideally this should be done before they return to work.

For further information visit the Health and Safety Executive (HSE) website.

Redundancies for pregnant employees or those on maternity leave

Acas guidance on pdf  Managing redundancy for pregnant employees or those on maternity leave [334kb].

When a genuine redundancy situation occurs, and where there is no suitable alternative work available for those on maternity leave, women can lawfully be made redundant, providing that pregnancy and maternity is not the reason for redundancy.

What the law says.

Making a claim of pregnancy or maternity discrimination

If an employee feels they been discriminated against, they will be able to bring a claim to an employment tribunal. However, it is best that they talk to their employer first to try to sort out the matter informally.

Claimants who wish to bring a claim to a tribunal or appeal tribunal will have to pay a fee. The first fee will be paid to issue a claim and a further fee will be payable if the claim goes to a hearing. There are two levels of fee which will depend on the type of claim. Further information is available from Ministry of Justice - Employment Tribunal guidance.

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

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