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: 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 to treat a woman unfavourably because:
- she is on compulsory maternity leave
- she is taking or is trying to take ordinary or additional maternity leave
- she has taken or tried to take ordinary or additional maternity leave
In addition to maternity leave, employees may be entitled to shared parental leave. This is leave of up to 50 weeks which can be shared by parents (who are employees) once the mother has given notice to shorten her maternity leave entitlement or returned to work.
Find out more about shared parental leave on GOV.UK.
The law is unclear as to whether unfavourable treatment of a woman because she has taken or tried to take shared parental leave will count as maternity discrimination, although you must not disadvantage or dismiss an employee for taking, seeking to take, or because you believe they are likely to take shared parental leave.
See the Acas guidance on shared parental leave and pay.
Who is protected from maternity discrimination and over what period?
It is maternity discrimination for you to treat an employee unfavourably because they are on compulsory maternity leave.
Employees are protected from maternity discrimination for taking or trying to take ordinary and additional maternity leave. It is maternity discrimination to treat someone unfavourably because of her ordinary or additional maternity leave even if the treatment happens after the maternity leave has come to an end. For example, if an employee’s job is changed unfavourably on her return from leave because she has been on maternity leave, this would be unlawful maternity discrimination. This is different from when protection from pregnancy discrimination applies.
What about workers who are 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 not allowed to work 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.
What is unfavourable treatment?
Unfavourable treatment is where a woman is treated badly (unfavourably is the legal term) because of taking, trying to take or having taken maternity leave. Some examples are where a woman is:
- made redundant: this would include failing to consult her because she is on maternity leave, disadvantaging her in the selection process, not offering her suitable alternative available work
- not promoted
- not offered training: it is particularly important to give an employee the opportunity of attending training if this will affect a pay rise or promotion
- not told about suitable job opportunities
- not consulted about a re-organisation which affects her job in a detrimental way
- not allowed to return to the same job after maternity leave or some of her responsibilities are removed and re-allocated
- dismissed
In some situations you may need to treat a woman on maternity leave more favourably to remove any disadvantages she might suffer because of being on maternity leave.
Returning to work after maternity leave
You must allow an employee to return to the same job during or at the end of 26 weeks (ordinary maternity leave). If an employee takes more than 26 weeks (additional maternity leave) you may offer the employee a similar job, if it is not reasonably practicable for her to return to the same job.
An employee will be able to end her maternity leave and/or pay, from two weeks after the birth, so that she can share the remaining leave with the child’s father or her partner. This is called shared parental leave. For employees who take shared parental leave the right to return to the same job, (or a suitable alternative after leave of more than 26 weeks), is the same as returning after maternity leave.
Flexible working requests
An employee on maternity leave may ask to return to work on different hours or working pattern. You must consider any request in a reasonable manner, following the Acas code of practice on handling requests to work flexibly. Refusal of a request, which is not justified by business needs, may be indirect sex discrimination.
Other relevant legal provisions
- direct sex discrimination: where you are treated less favourably than a man because you are a woman (not because you have been on maternity leave). For example, where a woman taking shared parental leave is treated less favourably than a man taking it
- indirect sex discrimination: where an employer applies a clause, standard or practice to both women and men that puts women at a particular disadvantage and it is not necessary for the business (this occurs most commonly where a woman is refused flexible working)
- victimisation: where you are disadvantaged because you have made a complaint of discrimination
- protection from a detriment (that is a disadvantage): where you are disadvantaged because of your pregnancy, maternity leave or other type of family leave
- automatic unfair dismissal: where you are dismissed because you are pregnant or taking, will take, or have taken a type of family leave. The usual rule that an employee has to have two years' employment before they can claim unfair dismissal does not apply to automatically unfair dismissals, which you can claim from day one. See guidance on unfair dismissals on GOV.UK
- unfair dismissal: after two years employment with the employer, you can claim if there is no ‘fair’ reason for your dismissal or there has been an unfair dismissal procedure. See guidance on unfair dismissals on GOV.UK
Last updated: 21 Dec 2018