Pregnancy And Maternity Discrimination in the Workplace

Pregnancy and Maternity DiscriminationPregnancy and maternity discrimination is unlawful. There are specific legal protections in place to protect women from being discriminated against because of pregnancy or maternity leave. Understanding what rights you have is the starting point to taking action. Juggling work and family life can be difficult, which is only made worse if you are the victim of pregnancy and maternity discrimination.

We have further information on Direct Discrimination and Indirect Discrimination and cover below the main rights specifically related to pregnancy and maternity.

Pregnancy and Maternity Discrimination

It is unlawful discrimination to treat a woman unfavourably because of her pregnancy or a related illness, or because she is exercising, has exercised or is seeking or has sought to exercise her right to maternity leave. Such discrimination cannot be justified by the employer.

If a woman is treated unfavourably because of her pregnancy or maternity leave, this is automatically discrimination. There is no requirement to compare the treatment like there is with other claims of “direct discrimination.”

Unfavourable treatment of a woman because of her pregnancy or maternity leave during ‘the protected period’ is pregnancy and maternity discrimination. We explain the “protected period” below.

In some cases, employers have to treat pregnant workers or workers that have recently given birth more favourably. We explain this further below. Men are not able to claim this more favourable treatment is sex discrimination.

Pregnancy and Maternity Discrimination – The Protect Period

The protected period starts when a woman becomes pregnant and continues until the end of her maternity leave, or until she returns to work if that is earlier.

The three types of maternity leave are:

  1. Compulsory Maternity Leave – This is a minimum two-week period (four weeks for factory workers) from immediately after childbirth when a woman is not to work. If you are entitled to “ordinary” maternity leave, you must take compulsory maternity leave.
  2. Ordinary Maternity Leave – All pregnant employees are entitled to 26 weeks of ordinary maternity leave (which includes compulsory maternity leave), provided they give proper notice (you must tell your employer, at least 15 weeks before the baby is expected, that you are pregnant with your due date).
  3. Additional maternity leave – All pregnant employees are entitled to a further 26 weeks of maternity leave, provided they give proper notice.

There is no minimum qualifying period of service for ordinary and additional maternity leave, but it is only available to employees.

An employee on statutory maternity leave (or adoption leave) is able to agree to work for up to ten days (known as “keep in touch” days) without bringing the maternity leave to an end (this can include attending training or meetings, for example).

The Protected Period

The protected period in relation to a woman’s pregnancy ends either:

  • If she is entitled to ordinary and additional maternity leave, at the end of the additional maternity leave period.
  • When she returns to work after giving birth (if that is an earlier date).
  • If she is not entitled to maternity leave, two weeks after the baby is born.

Unfavourable Treatment After the Protected Period

Any unfavourable treatment because of pregnancy outside of the protected period would be considered sex discrimination rather than pregnancy and maternity discrimination.

Pregnancy and Maternity Discrimination – Other Key Points

Some other key points when considering pregnancy and maternity discrimination are:

  • Own pregnancy/association – For pregnancy and maternity discrimination, the unfavourable treatment must be because of the woman’s own pregnancy. However, a worker treated less favourably because of association with a pregnant woman or a woman who has recently given birth may have a claim for direct sex discrimination (by association).
  • Knowledge of pregnancy – Unfaoubravle treatment will only be unlawful if the employer was aware of the pregnancy. The employer must “know, believe or suspect” that the woman is pregnant – this can be through formal notification or “through the grapevine.” There is no obligation to inform the employer of the pregnancy until 15 weeks before the baby is due, but as soon as you tell the employer, this triggers legal protection (including health and safety obligations).
  • Comparators – there is no requirement to have a comparator for the unfavourable treatment, but it may be useful evidence.
  • Reason for treatment – The pregnancy or maternity leave does not have to be the only reason for the unfavourable treatment, but it does have to be an important factor.

Unfavourable Treatment

It is important to understand what amounts to unfavourable treatment.

Some common examples are demotion, being dismissed or being denied training/promotional opportunities. An employer must not take into account any period of pregnancy-related sickness absence when making a decision about her employment.

Some other examples (although not an exhaustive list) of unfavourable treatment during the protected period are:

  • Taking disciplinary action against a woman that is unable/refuses to carry out a task because of a pregnancy-related risk.
  • Excluding a pregnant woman from business trips.
  • Excluding a pregnant woman from training opportunities.
  • Failing to consult with a woman on maternity leave about changes at work.
  • Giving a pregnant woman less responsibility / interesting work.

Some examples (although not an exhaustive list) of reasons for unfavourable treatment during the protected period are:

  • Any performance issues due to pregnancy-related conditions (such as morning sickness).
  • Any absence due to pregnancy-related illness.
  • Any cost to the business to cover the pregnant woman’s work.
  • Any inability to do her work because of a pregnancy-related reason.

Redundancy During Maternity Leave

A woman that is made redundant during statutory maternity leave is entitled to be offered any suitable alternative vacancy ahead of other employees. If not, there may be a claim for automatic unfair dismissal.

Returning to Work After Maternity Leave

After ordinary maternity leave, a woman has a statutory right to return to the same job.

After additional maternity leave, a woman has a statutory right to return to the same job, unless the employer can show this is not “reasonably practicable.” If it is not reasonably practicable to return to her previous role, the woman is entitled to be offered a suitable alternative job, on terms and conditions that are not less favourable.

Refusing to allow a woman to return to work part-time could be Indirect Discrimination (specifically indirect sex discrimination). Parents of dependent children have the right to make a flexible working request, which an employer must consider and respond to.

Pay And Conditions – Maternity Pay

Unless otherwise agreed (for example in the employment contract) there is no legal right to receive full pay during maternity leave. Any other benefits are to be maintained.

Statutory maternity pay is available to employees, that have been continuously employed for at least 26 weeks ending with the “qualifying week,” which is the 15th week before the due date, as long as they do not earn less than the “lower earning limit.” The lower earning limit is set each tax year by the government (in 2023/24 tax year the lower-earning limit is £123 per week). There is also a requirement to give reasonable notice of when statutory maternity leave is to start and to supply a certificate (usually a MAT B1 form) confirming the expected week of childbirth.

Statutory maternity pay is paid at two rates:

  • The first 6 weeks are paid at the “earnings-related rate,” which is 90% of the employee’s normal weekly earnings.
  • The remaining 33 weeks are paid at the “prescribed rate” or the earnings-related rate, whichever is lower (the prescribed rate is currently (2023) £172.48, but an internet search will give you the updated rate).

The above is a general overview of pregnancy and maternity discrimination, which can be a complex area. If you are concerned that you are being discriminated against, then seeking professional advice is recommended.

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