Mother and baby

During maternity leave - Overview

What is 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, which is two weeks immediately after the birth which all employees entitled to maternity leave must take.
  • Ordinary maternity leave, which is the first 26 weeks of leave, including the compulsory maternity leave period.
  • Additional maternity leave, which is a further 26 weeks of leave.

It is unlawful maternity discrimination if you are treated unfavourably because:

  • you are on compulsory maternity leave
  • you are taking or are trying to take ordinary or additional maternity leave, and
  • you have taken or tried to take ordinary or additional maternity leave.

In addition, there is shared parental leave where the expected week of childbirth is on or after 5 April 2015. This is leave of up to 50 weeks, which can be shared by parents (who are eligible employees).

If you are not sure whether taking shared parental leave is the right choice for you should seek advice.

To take shared parental leave you must bring your maternity leave to an end. The law is unclear as to whether unfavourable treatment because you took shared parental leave will count as maternity discrimination, although you must not be disadvantaged or dismissed for taking, seeking to take, or because your employer believes you are likely to take shared parental leave.

Who is protected from maternity discrimination?

Only employees are entitled to ordinary and additional maternity leave so it is only employees who are protected from being treated unfavourably for taking ordinary and additional maternity leave. 

Only employees are required to take compulsory maternity leave so it is only employees who are able to claim maternity discrimination if treated unfavourably while on compulsory maternity leave.

What if I am not entitled to maternity leave?

Workers and job applicants not entitled to maternity leave are protected from pregnancy discrimination throughout their pregnancy and for two weeks immediately after their pregnancy ends. After that ‘protected period’ a worker (not entitled to maternity leave) who is treated less favourably than another worker because she has taken time off following the birth of her baby may be able to claim sex discrimination.

Factory workers are prohibited from working for four weeks after giving birth regardless of whether they are entitled to maternity leave. For factory workers not entitled to maternity leave the first two weeks of that period will fall within the ‘protected period’ and they will be protected from pregnancy discrimination.  Unfavourable treatment after the ‘protected period’ up to the end of their compulsory four-week absence is likely to be pregnancy and maternity or sex discrimination.

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. For example, if your job is changed unfavourably on your return from leave because you have been on maternity leave, this would be unlawful maternity discrimination. This is different to protection from when pregnancy discrimination applies.

What is unfavourable treatment?

Unfavourable treatment is where you are treated badly (unfavourably is the legal term) because of taking or trying to take maternity leave. Some examples are where a woman is:

  • Made redundant; this would include failing to consult you because you are on maternity leave, disadvantaging you in the selection process, not offering you suitable available work.
  • Not promoted.
  • Not offered training and this meant that you were not able to get a pay rise or move to the next level.
  • Not told about suitable job opportunities.
  • Not consulted about a re-organisation which affects your job in a detrimental way.
  • Given a different job or have some of your responsibilities taken away. You are entitled to return to the same job after maternity leave.
  • Dismissed.

Your rights during ordinary and additional maternity leave

Your employer is legally required to allow you the benefit of your terms and conditions (except pay) during your maternity leave. This includes, for example:

  • Accruing holiday entitlement. If you take one year’s maternity leave you are entitled to your holiday entitlement for the year, which can be taken at a time agreed with your employer.
  • Full pension contributions for the period of paid leave, which is likely to be 39 weeks of statutory maternity pay (SMP); your employer’s contributions are based on your normal pay but your contributions are based on your actual income during leave.
  • Participation in share ownership scheme.
  • Membership of a health club.
  • Reimbursement of professional subscriptions.
  • Health and life insurance.
  • Use of company car, unless it is for business use only.
  • Use of mobile phone and laptop unless it is for business use only.
  • The benefit of any pay rise due during the maternity leave period.

Special provision for a woman on maternity leave

In some situations your employer must treat you more favourably to remove any disadvantages you might suffer because of being on maternity leave. Special provision for a woman in connection with her pregnancy, childbirth or maternity leave is not sex discrimination against a man provided that the action an employer takes does not go beyond what is necessary to rectify her disadvantage. For example, when carrying out a performance assessment exercise based on meeting annual targets an employer must find a proportionate way to adjust the scoring to compensate for the fact that a woman’s score would otherwise be lower because she was on maternity leave for part of the period being assessed.

Contact during maternity leave

Your employer may, and in some situations must, contact you during your maternity leave. For example, your employer must contact you to consult you about redundancies, job opportunities and access to training or promotion. It is advisable to discuss what level and type of contact you want before you go on maternity leave.  For example you may want continued access to your employer’s intranet, copies of notes from relevant meetings, access to email.

Keeping in touch (KIT) days

You can work up to 10 days during maternity leave, if you and your employer agree, without it affecting your statutory maternity pay. Your employer is not legally required to pay you for these days but it is good practice to do so. It is best to check with your employer what work you will be doing and what you will be paid. See the GOV.UK guidance on employee rights when on leave.   

If you take shared parental leave (SPL) you can work up to 20 days during your SPL, with your employer’s agreement, and these should be paid. Find more information on shared parental leave on GOV.UK.

Returning to work after leave

In most circumstances, you are entitled to return to the same job after maternity leave. However, the right to return is slightly different when returning from ordinary maternity leave, when there should be no change to your job, and additional maternity leave when an employer may, in very limited circumstances, offer you a similar job instead. Where those circumstances don’t apply but your employer doesn’t allow you to return to your job this will be maternity discrimination, for example if your employer doesn’t let you return to your job because they want to keep the maternity cover in your job.

There are similar rules about what should happen when you return to work after taking shared parental leave. 

Flexible working requests

An employee on maternity leave may ask to return to work on different hours or working pattern. Your employer must consider any request in a reasonable manner, following the ACAS code of practice on handling in a reasonable manner requests to work flexibly. If your employer refuses a request where the refusal is not justified by business needs, this may be indirect sex discrimination.

Other legal provisions

Other relevant legal provisions include protection from:

  • Direct sex discrimination, which is where you are treated less favourably than a man is or would be because you are a woman (not because you are on maternity leave).
  • Indirect sex discrimination which is where an employer applies a provision, criterion or practice to both women and men that puts women at a particular disadvantage compared to men (or vice versa), and is not necessary for the business.
  • Victimisation which is where you are disadvantaged because you have made a complaint of discrimination;
  • Automatic unfair dismissal which is where an employee is dismissed because she is pregnant or is taking, will take, or has taken a type of family leave including maternity, adoption, paternity, shared parental leave.
  • 'Unfair dismissal, which you can claim if you have worked for your employer for two years, and there is no ‘fair’ reason for your dismissal or there has been an unfair procedure. For more information on unfair dismissal see:

Last updated: 04 Dec 2018