Pregnancy and maternity discrimination - a guide | Redmans Solicitors

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Discrimination at work because of pregnancy or maternity leave – a quick guide

If you’re pregnant or on maternity then you have certain rights at work – a brief guide to these rights is laid out below

Table of contents

What is discrimination because of pregnancy or maternity leave

If you are in work and are pregnant or are on maternity leave then you are afforded greater employment rights and protections.

One of the main rights that you have if you are pregnant or are on maternity leave is that your employer is not allowed to discriminate against you (i.e. treat you unfairly) because of this. Discrimination generally occurs if you are subjected to some form of detriment because you are pregnant or on maternity leave, such as if you are demoted, or there is a failure to promote you, or you are disciplined or dismissed  because you are pregnant or on maternity leave.

If you feel that you have been treated unfairly by your employer because you are pregnant or on maternity leave then you have the right to make a complaint at work and, if necessary, to make a claim to the Employment Tribunal.

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Examples of discrimination because of pregnancy or maternity leave

Below are some examples of situations in which you may be subject to pregnancy or maternity discrimination:

  • If your employer demotes you or gives you a bad appraisal because you are pregnant or on maternity leave
  • If your employer fails to offer you training or promotion opportunities because you are pregnant or on maternity leave
  • If you go on maternity leave and your employer fails to offer you any suitable alternative vacancy
  • If your employer makes you redundant because you are pregnant
  • If you’re disciplined or dismissed because of an illness connected to your pregnancy
  • If your employer dismisses you because you are pregnant or on maternity leave
  • If your employer makes redundancies whilst you are on maternity leave but fails to consult you about it

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Being paid during your maternity leave

You are entitled to be paid for a certain period during your period of maternity leave but not at your full rate of pay, unless your contract of employment stipulates otherwise. You should check your contract of employment carefully to determine whether it specifies what your right to pay is whilst you are on maternity leave.

Whilst on maternity leave you are able to claim Statutory Maternity Pay (“SMP”) for 39 weeks of your leave period. In order to qualify for this right you must have been continuously employed for at least 26 weeks into the fifteenth week before your expected week of childbirth. Statutory Maternity Pay is paid at 90% of your average pay, subject to a weekly maximum of £128.73 after the first six weeks. For more information on your rights when you’re on maternity leave, please see Maternity leave.

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Your terms and conditions during pregnancy or maternity leave

You are entitled to the benefit of the same terms and conditions that you were on prior to you going on maternity leave, save for the amount you will be paid as your normal wages or salary. You should therefore still be entitled to any benefits that you would normally receive as wages in kind, such as health insurance or company cars. If you’re not provided with these benefits or your terms and conditions are changed without your agreement whilst you’re on maternity leave then this may be pregnancy or maternity discrimination or sex discrimination.

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Discrimination because you are taking time off work sick because of your pregnancy or because of your sickness record

Pregnancy and maternity discrimination occurs if an employer treats you(whether you’re a current employee or a job applicant) unfavourably because of an illness suffered as a result of your pregnancy.

Your employer is not permitted to take into account any pregnancy-related absences (during the “protected period”) for the purposes of attendance management, disciplining you or deciding to dismiss you.

Case study – Mulla v Enigma Fashiions UK Limited & anor

In the case of Mulla v Enigma Fashiions UK Limited & R Rajshakha ET/2601433/2016 the Employment Tribunal held that Ms Mulla had been discriminated against because of her pregnancy  and was awarded £55,963.58 as compensation.

Read more

If you’re absent from work because of an illness suffered as a result of your pregnancy then you are entitled to receive sickness pay. It is important to note that you are not automatically entitled to be paid in full for the period of work that you’re absent from work because of a pregnancy-related illness and it will not be pregnancy and maternity discrimination or sex discrimination if you are not paid at your full rate. However, you should be paid at the same rate that you would have received whilst you are sick as you would have been paid had you not been absent for a pregnancy-related illness.

Example

You’re pregnant and have been off work because of pregnancy complications since early in your pregnancy. Your employer has a sickness absence policy which states that you are allowed to take no more than 20 weeks’ continuous absence leave and that employees may be dismissed if they take more than this. This policy is applied regardless of sex. You take more than 20 weeks off because of your pregnancy-related illness and are dismissed. Your dismissal would be unfavourable treatment because of your pregnancy and would be unlawful under the Equality Act 2010.

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Discrimination because you are taking time off work for ante-natal care

You are entitled to take a reasonable period of time off work to attend appointments for ante-natal care. If your employer refuses to let you take time off or submits you to any detriment because you are taking time off work to attend an ante-natal appointment then this is unlawful under the Equality Act 2010 and the Employment Rights Act 1996.

Example
A pregnant employee has booked time off to attend a medical appointment  related to her pregnancy. Her employer insists this time must be made up through flexi-time arrangements or her pay will be reduced to reflect the time off. This is unlawful: a pregnant employee is under no obligation to make up time taken off for antenatal appointments and an employer cannot refuse paid time off to attend such classes.

If you’re the partner of the pregnant woman then you do not have an automatic right to take time off work to attend ante-natal appointments. However, your employer may choose to allow you to take the time off for this purpose or, alternatively, you can take unpaid leave or part of your holiday entitlement so you can do so.

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Discrimination because you are undergoing IVF treatment

If you are subjected to a detriment or dismissed because you are undergoing IVF treatment then this may constitute sex discrimination – you should seek expert advice on this. Any detrimental treatment or dismissal after the transfer of the egg through the IVF treatment to you may constitute pregnancy and maternity discrimination.

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Applying for jobs whilst you are pregnant or on maternity leave

You do not have to tell a prospective employer if you are pregnant.

It is unlawful for an employer to refuse to employ you simply because you are pregnant. If you inform the prospective employer that you are pregnant and you are then not offered the job (and suspect that this may be because you informed the employer of your pregnancy) then this may constitute pregnancy discrimination.

If you inform your employer that you are pregnant after you have been offered the job then you must not be subjected to any detriment or dismissed because of this. The withdrawal of a job offer because you are pregnant would constitute pregnancy discrimination.

Example
You apply for a job as a driving instructor and, on the strength of your CV and your interview, are offered the job. However, after you have accepted the job you inform your employer that you are six weeks pregnant. Your employer then changes their mind and say that your job offer is being withdrawn because of a lack of suitable references, although you are sure that your previous employers have not given you unfavourable references. This would be pregnancy discrimination and cannot be justified by your employer. You can make a claim about this to the Employment Tribunal.

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Action you can take if you think that you’re being discriminated against

If you think that you are being discriminated against because you are pregnant or on maternity leave then you should take action as soon as possible. Below are some examples of what you can do:

  • Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
  • Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
  • Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
  • Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

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Making an Employment Tribunal claim for pregnancy and maternity discrimination

If you want to make an Employment Tribunal claim for pregnancy and maternity discrimination then you must do the following:

  • Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
  • Ensure that your employer was aware that you were pregnant (or that there are sufficient facts which mean that your employer should have been aware that you were pregnant)
  • Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for pregnancy and maternity discrimination – you have the right to do this from “day one”.

You may have to pay a fee to issue your claim for pregnancy and maternity discrimination unless you qualify for a fee remission. You may also have to pay a fee for the Employment Tribunal hearing – again, you may not need to do so if you qualify for a fee remission.

Details of when you may qualify for a fee remission are available in the EX160A form on the Ministry of Justice website.

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What happens if you’re victimized for making a complaint of pregnancy and maternity discrimination?

If you do any of the acts listed below (known as a “protected act”) and are then subjected to any form of detriment or dismissal because you have done so then you may be able to make a claim for “victimization” under the Equality Act. A protected act can include:

  • Making or threatening to make an informal or formal complaint about pregnancy and maternity discrimination within your organisation
  • Helping a colleague to make a complaint or helping them with their Employment Tribunal claim regarding pregnancy and maternity discrimination
  • Making or threatening to make an Employment Tribunal claim for pregnancy and maternity discrimination

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Call Redmans today to discuss your employment law matter

Call Redmans on 020 3397 3603 or email us at enquiries@redmans.co.uk to discuss your employment law matter.

Alternatively, you can call Chris Hadrill, the partner responsible for the employment department, on 020 3397 3601 or email him at chadrill@redmans.co.uk.

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