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Pregnancy and maternity

Contents

Introduction

The Equality Act 2010 provides that you cannot treat workers less favourably because:

  • They are pregnant
  • They have suffered from a pregnancy-related illness
  • They are on compulsory maternity leave
  • They are on ordinary or additional maternity leave
  • They have or intend to exercise their right to take ordinary or additional maternity leave
Discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

Types of discrimination

Direct discrimination

This is where a worker is treated less favourably than she was treated before she became pregnant or before she has (or planned to) exercise her statutory maternity leave rights. There is no need for the worker to be compared with another worker.

For example, if a worker is sacked because she has told you that she is pregnant or might start a family.

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

You cannot defend a direct discrimination claim by 'justifying' it (arguing that your actions were a proportionate means of achieving a legitimate aim). The only defence would be to prove that there was no discrimination.

Victimisation

Victimisation happens when a worker is treated less favourably because:

  • They have asserted their right not to be discriminated against because they are pregnant or have or intend to exercise their rights to maternity leave and have made a complaint
  • They gave evidence in a complaint of discrimination because of pregnancy or the right to maternity leave
  • They did anything else under the Equality Act relating to their rights to maternity leave and/or their pregnancy
  • They have alleged that you or another worker have contravened the provisions regarding discrimination because of pregnancy or the right to maternity leave in the Equality Act
  • You believe that they have done or may do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned action.

Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,
...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • You do not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

See the Acas website for more information on pregnancy and maternity leave related discrimination. Acas offers free, confidential and impartial advice on all employment rights issues.

The Equality and Human Rights Commission (EHRC) have a number of employer guides regarding your obligations under the Equality Act 2010.