Discrimination based on pregnancy or maternity is distinct from sex discrimination. The Equality Act 2010 (EqA) lists both pregnancy and maternity as protected characteristics and it is unlawful in the UK to discriminate against someone because they are pregnant or on maternity leave. If you have experienced this specific type of discrimination, you might be entitled to make a claim at the Employment Tribunal.
What is pregnancy or maternity discrimination?
Pregnancy discrimination and maternity discrimination occur in the workplace when employees are treated unfavourably because they are pregnant or on maternity leave. This type of discrimination can arise during the recruitment process or training sessions and throughout employment. The EqA protects a broad range of workers and employers do not have the option to opt out of the Equality Act 2010, regardless of their size.
Many employees do not realise that protection is provided throughout pregnancy, during compulsory maternity leave, ordinary maternity leave and additional maternity leave as well as when maternity leave comes to an end and you return to work.
It is beneficial to familiarise yourself with your rights when you become pregnant, for example; employees are entitled to ‘reasonable’ paid time off to attend antenatal appointments.
The different types of pregnancy or maternity discrimination
Unlike other types of discrimination, the EqA only protects against two types of pregnancy or maternity discrimination. Indirect discrimination and harassment do not arise here, and protection does not extend to a relative’s pregnancy. However, in some circumstances, whilst the unfair treatment might not be pregnancy or maternity discrimination, it could be sex discrimination and you may still be protected by the EqA.
Direct discrimination is when a woman is treated less favourably than others because of her pregnancy or maternity leave. It can occur at any time from the start of the pregnancy through to the end of the maternity leave. Protection is also provided against direct discrimination relating to an illness caused by the pregnancy.
An example of each of these types of direct discrimination are as follows;
- An employee being denied a promotion because they are pregnant.
- An employee being given an inferior role after maternity leave.
- An employee being dismissed because they have been off of work due to a pregnancy-related illness.
For direct discrimination to occur, an employer must have knowledge of the pregnancy or have suspected the pregnancy.
Victimisation occurs when an employee experiences detrimental treatment for making a complaint about pregnancy or maternity discrimination. The EqA provides protection when an employee brings an Employment Tribunal claim as well as when an employee provides evidence in another employee’s claim.
Pregnancy or maternity discrimination claims
For both pregnancy discrimination cases in the UK and maternity leave discrimination cases in the UK, an employee needs to establish ‘clear facts’ for an Employment Tribunal. It is then an employer’s responsibility to justify the behaviour that you are claiming is discriminatory. If they are unable to do so, the Employment Tribunal will conclude the case is discriminatory.
Like all other discrimination cases, there is a requirement to adhere to the ACAS Code of Practice on Discipline and Grievance Procedures when a discrimination issue arises. Ignoring the ACAS Code can result in penalties for both you and your employer, potentially decreasing the awarded compensation by up to 25%. Claims must be made within three months less one day of the discriminatory act too. If the discriminatory conduct is ongoing, this period begins from the date of the last incident.
Should you have any questions about pregnancy and maternity discrimination at work or if you think you have experienced discrimination, you should consult an employment law expert and get some legal advice. They can provide you with more information about your rights and help you to establish whether you have a claim that can be taken to the Employment Tribunal.