Pregnancy and maternity discrimination is when you are treated unfavourably (differently) because you are pregnant, breastfeeding or you have given birth, in one of the situations that are covered by the Equality Act.
Pregnancy is the condition of being pregnant or expecting a baby.
Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.
The treatment could be a one-off action or as a result of a rule or policy. It doesn’t have to be intentional to be unlawful.
Different types of pregnancy and maternity discrimination
The Equality Act 2010 protects women against direct discrimination and victimisation because of the protected characteristic of pregnancy and maternity.
This happens when someone treats you worse than another person in a similar situation, because of your pregnancy or maternity. For example:
- You are pregnant and applying for a promotion at work. Your employer decides not to promote you, even though you are the best candidate for the job, because they do not want to pay the increased rate for your maternity leave. This is likely to be pregnancy discrimination.
- Your job is changed unfavourably on your return from leave as you have been on maternity leave. This is likely to be maternity discrimination.
- You work shift work and tell your employer that you are pregnant. You are off sick due to your pregnancy and when you return to work you find that you have been given fewer shifts. This is likely to be pregnancy discrimination.
- You are made redundant while you are maternity leave. Your employer failed to consult with you as you were on maternity leave, disadvantaging you in the selection process and did not offer you a suitable alternative position. This is likely to be maternity discrimination.
- You are breastfeeding your newborn baby on the bus. The driver tells you to stop breastfeeding or get off the bus. This is likely to be maternity discrimination
This is when you someone treats you badly because you have made a complaint about pregnancy and / or maternity related discrimination. It can also occur if you are supporting someone who has made a complaint of pregnancy and / or maternity related discrimination.
Indirect discrimination and harassment
There are no specific laws in the Equality Act 2010 that cover indirect discrimination and harassment in relation to pregnancy and maternity. However, you may be able to claim sex discrimination in these cases. Many indirect sex discrimination cases are connected with employers refusing to allow women returning from maternity leave to work part time.
Pregnancy and maternity discrimination outside of work
The Equality Act says:
- you must not be discriminated against by being treated unfavourably because of pregnancy
- you must not be discriminated against by being treated unfavourably because you have given birth in the previous 26 weeks
- being treated unfavourably because you have given birth includes being treated unfavourably because you are breast-feeding
- that if you have a stillbirth after 24 weeks of pregnancy, you are protected from discrimination for 26 weeks after the stillbirth
Pregnancy and maternity discrimination at work
The Equality Act says you must not be discriminated against during the protected period because:
- of your pregnancy, or
- because of illness suffered by you as a result of your pregnancy
- you are a woman on compulsory maternity leave
- you are exercising or seeking to exercise your right to ordinary or additional maternity leave
The Equality Act protects you from discrimination from when you become pregnant until:
- your right to maternity leave ends and you return to work, or
- if you do not have the right to maternity leave, 2 weeks after the child is born
This period of time is called the protected period.
You can also choose to end your maternity leave or pay from two weeks after the birth, so that you can share the remaining leave with the child’s father or your partner. This is called shared parental leave.
Employees who take shared parental leave have right to return to the same job, (or, if this is not possible, a suitable alternative job after leave of more than 26 weeks).
Returning to work after leave
You are entitled to return to the same job during or at the end of 26 weeks (ordinary maternity leave). If you return during or at the end of more than 26 weeks (additional maternity leave) and your employer can show it is not reasonably practicable for you to return to the same job, you must be offered a suitable alternative job.
Unlawful maternity discrimination
Unlawful maternity discrimination is discrimination that relates to an employee’s maternity leave.
There are three types of maternity leave:
- compulsory maternity leave: two weeks immediately after the birth, which all employees entitled to maternity leave must take
- ordinary maternity leave: the first 26 weeks of leave, including the compulsory maternity leave period
- additional maternity leave: a further 26 weeks of leave
It is unlawful maternity discrimination if someone treats you unfavourably because:
- you are on compulsory maternity leave
- you are taking or are trying to take ordinary or additional maternity leave
- you have taken or tried to take ordinary or additional maternity leave
Who is protected from maternity discrimination?
Only employees are protected from being treated unfavourably for taking ordinary and additional maternity leave.
Because employees are required to take compulsory maternity leave, only employees can claim maternity discrimination if treated unfavourably while on compulsory maternity leave.
When are you protected from maternity discrimination?
It is maternity discrimination to treat you unfavourably when you are on compulsory maternity leave.
It is maternity discrimination if you are treated unfavourably because of your ordinary or additional maternity leave, even if the treatment happens after that maternity leave has come to an end.
Last updated: 27 Apr 2022