What is unlawful pregnancy and maternity discrimination during pregnancy?
- It is unlawful pregnancy discrimination to treat an employee unfavourably:
- because she is pregnant,
- for a reason relating to her pregnancy, or
- because of illness related to her pregnancy,
- It is unlawful maternity discrimination to treat a pregnant employee unfavourably because she is about to go on maternity leave.
Who is protected from pregnancy discrimination?
All employees, casual workers, agency workers, freelancers and self-employed women (who are pregnant) are protected from pregnancy discrimination from the first day of their employment.
The protection also covers recruitment decisions.
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.
If an employer or recruiter asks questions about pregnancy or plans to start a family and the woman is not given the job, an employment tribunal may conclude that discrimination has occurred. A pregnant woman must be treated in the same way as other workers except where she needs special treatment or protection because of her pregnancy, such as paid time off for antenatal care, protection from health and safety risks and protection from being dismissed or disciplined for absence because of pregnancy related illness.
For detail of employment status and the rights of different workers see: https://www.gov.uk/employment-status. For the rights of agency workers see: https://www.gov.uk/agency-workers-your-rights/maternity-rights-for-agency-workers.
When is a woman protected from pregnancy discrimination?
- For employees entitled to statutory maternity leave, the protection from discrimination lasts from the beginning of your employee’s pregnancy until the end of her additional maternity leave entitlement, or when she returns to work.
- For those who are not entitled to maternity leave, the protection is from the beginning of pregnancy until two weeks after the end of the pregnancy. This is called the protected period.
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.
- A woman is protected from pregnancy discrimination as soon as you know, believe or suspect that she is pregnant. She does not have to tell you she is pregnant until 15 weeks before her baby is due to be born. If she chooses not to tell you and you aren't aware that she is pregnant, she will not be protected from pregnancy discrimination if she is treated unfavourably, for example by being dismissed or disciplined if she takes time off for pregnancy related illness. She will also not be entitled to other rights, like paid time off for antenatal appointments, unless she has notified you that she is pregnant.
An Employee's Rights During Pregnancy
You must not treat a woman unfavourably for any of the following reasons:
- She is temporarily unable to do the job for which she is employed, whether permanently or on a fixed-term contract because of her pregnancy.
- She is temporarily unable to work because to do so would be a breach of health and safety regulations.
- Covering her work is too costly to the business.
- Her absence is due to pregnancy related illness.
- Her inability to attend a disciplinary hearing due to morning sickness or other pregnancy-related conditions.
- Poor performance linked to pregnancy related conditions, for example morning sickness.
To do so would be unlawful.
What is unfavourable treatment?
Unfavourable treatment is when an employee is treated badly or poorly (unfavourably is the legal term) because of her pregnancy or pregnancy related illness, or because she is seeking to take maternity leave.
You must make sure that neither you nor your employees, treat an employee unfavourably because of her pregnancy, or pregnancy related illness, for example:
- Refusing to recruit her because she is pregnant or on maternity leave.
- Refusing to allow her to take reasonable paid time off to attend antenatal appointments or criticise her for taking time off to attend antenatal appointments.
- Failing to protect her health and safety where there are any risks.
- Dismissing her.
- Changing or removing her job responsibilities unless:
(i) necessary for health and safety reasons
(ii) she agrees, or
(iii) to arrange cover just before her maternity leave.
- Disciplining her or treating her badly because of pregnancy related illness.
- Excluding her from business trips or refusing to allow her to travel, when it is still safe.
- Refusing to let her have the same training opportunities as other employees.
- Not considering her for promotion.
- Denying her a pay rise or bonus.
- Otherwise treating her unfavourably, for example by ignoring her, making hurtful comments about her pregnancy or maternity leave.
Where one of your employees treats a woman unfavourably because of her pregnancy you, as the employer, are legally responsible for your employee’s discrimination/actions unless you have taken all reasonable steps to prevent the discrimination happening in the first place.//www.acas.org.uk/index.aspx?articleid=3715.
Other relevant legal provisions include protection from:
- Direct sex discrimination, which is where a woman is treated less favourably than a man is, or would be, because she is a woman (not because she is pregnant).
- Indirect sex discrimination, which is where there is a provision, criterion or practice, which applies to both women and men that puts women at a particular disadvantage compared to men and is not necessary for the business.
- Victimisation, which is where a woman is treated badly because she made a complaint of discrimination.
- Protection from a detriment (that is a disadvantage), which is where an employee is disadvantaged because of her pregnancy, maternity leave or other type of family leave.
- 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. 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. For more information on unfair dismissal see: https://www.gov.uk/dismiss-staff/unfair-dismissals.
Last updated: 20 Jun 2016