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 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
- you have taken or tried to take ordinary or additional maternity leave
There is also shared parental leave: leave of up to 50 weeks, which can be shared by parents (who are eligible employees).
Find out more about shared parental leave on GOV.UK.
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, looking to take, or 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, trying to take or having taken maternity leave. Some examples are where you are:
- made redundant; for example failing to consult you because you were 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
- denied the right to return to the same job or have some of your responsibilities taken away
- not considered for promotion because you took your full maternity leave, so are not seen as committed to the job
In some situations you may need to be treated more favourably by your employer to remove any disadvantages you might suffer because of being on leave.
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.
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. For employees who take shared parental leave the right to return to the same job, (or, if this is not possible, a suitable alternative job after leave of more than 26 weeks), is the same as returning after maternity leave.
Flexible working requests
You can ask to return to work on a different working pattern.
If you make a formal request under the flexible working procedure set out in the Acas code of practice on handling requests to work flexibly.
Your employer must consider any request carefully, following the Acas code.
Refusal of a request, where this is not justified by business needs, may be indirect sex discrimination.
Other relevant laws
- 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