When considering job applicants, you must appoint the best person for the job and not reject an applicant, because she is:
- pregnant (which would be pregnancy discrimination) or
- likely to become pregnant, (which would be sex discrimination) or
- about to go on maternity leave (which would be maternity discrimination).
No, not if the reason you are not interviewing applicants of child-bearing age is the possibility that a woman might become pregnant, or because of her age. If the best candidates happen to be those who are not of child-bearing age, it would not be discrimination as the selection would be on the basis of merit, not age or becoming pregnant. If challenged by an unsuccessful applicant of child-bearing age, you would probably need to show that the selection was on the basis of merit.
You cannot offer a pregnant woman a temporary job until she starts her maternity leave if you would have offered her a permanent job had she not been pregnant. Only offering her a temporary job in those circumstances is treating her unfavourably because of her pregnancy, which is unlawful discrimination.
No this should be avoided. You are legally required when making recruitment decisions not to consider that a woman is pregnant, or might become pregnant. It is unlawful to not appoint a woman because she is pregnant or might become pregnant. The job must be offered to the best candidate based on skills and experience.
Although it is not unlawful for you to ask such questions, if you do and the woman is not given the job, an employment tribunal may conclude that discrimination has occurred.
No this should be avoided. You are legally required, when making recruitment decisions, not to consider a woman’s family commitments. It is unlawful to not appoint a woman because she currently has children or is planning to have more. The job must be offered to the best candidate based on skills and experience.
Although it is not unlawful for you to ask such questions, if you do and the woman is not given the job, an employment tribunal may conclude that discrimination has occurred.
No. You should not have asked a job applicant if she is pregnant as it is not relevant to whether she is suitable for the job. Dismissing her for that reason would be pregnancy discrimination.
No, this would be pregnancy discrimination as the reason for withdrawing the offer of a job is because she is pregnant. You are legally required not take into account the fact that a woman is pregnant, or might become pregnant when making recruitment decisions.
There is no legal obligation to respond. But if the job applicant asks questions about why she did not get the job, it is advisable to give your reasons and explain why another candidate was more suitable. Doing so may be enough to satisfy the applicant. There is no legal obligation to respond but there are good practical and legal reasons why you should carefully consider doing so. ACAS explain these in their guidance.
Yes, she can ask to work part-time or ask to have a different working pattern after you have offered her the job. The ACAS Code explains the ‘right to apply for flexible working’ does not apply until she has been employed for 26 weeks. However, an unjustified refusal may be indirect sex discrimination. Indirect sex discrimination is where there is a provision, such as an insistence for all staff to work full-time, which particularly disadvantages more women compared to men (because women are more likely to have childcare responsibilities), and which an employer cannot justify. You should consider carefully whether the job could be done on the hours or working pattern requested.
When considering job applicants, you must not treat a woman unfavourably because she is pregnant. Doing so would be pregnancy discrimination.
This means that if the most qualified applicant is pregnant you must appoint her. This is true even if she is unable to fill a fixed-term job for its full length.
She will be entitled to statutory maternity pay, if she meets the qualifying conditions, or statutory maternity allowance and, depending upon your internal policies, enhanced maternity pay in line with the policies’ eligibility criteria.
It is unlawful to not appoint a woman because she is pregnant or might become pregnant. That includes not shortlisting her. The job must be offered to the best candidate based on skills and experience.
You should respond by letting your client know you are unable to comply with their request as it breaches the law. You should also advise the client that it is unlawful for them to instruct someone to break the law in this way.
Last updated: 09 Aug 2017