The Department of Business Innovation and Skills (BIS) recently commissioned an investigation into pregnancy discrimination and dismissal. Please see the report here.  Around 1 in 9 mothers were either dismissed or made redundant as a result of pregnancy).

Under Section 18 of the Equality Act 2010 pregnancy and maternity discrimination occurs when an employer treats women unfavourably during the protected period because she is on maternity leave or because she is exercising or seeking to exercise the right to maternity leave

The protected period under the Equality Act is defined as when the pregnancy begins and ends.  Workers and agency workers are covered under the Equality Act as well as employees.

The following examples can constitute pregnancy discrimination:

  • Treating the pregnancy unfairly because of pregnancy-related illness
  • A pregnant employee not being able to attend a disciplinary hearing because of a pregnancy-related illness
  • Performance issues because of morning sickness
  • Not being able to carry out certain work because of Health & Safety risk

Case Example: South West Yorkshire Partnership NHS Foundation Trust v Jackson & Others. The Claimant was on maternity leave but did not receive an email concerning redeployment opportunities. The company was undergoing a redundancy exercise.  An email was sent to her work email address but she was not at work and not accessing her emails all the time. 

It is also possible to discriminate against pregnant employees on the grounds of indirect discrimination and victimisation.

Preferential treatment for a pregnant employee who is at risk of redundancy:

The Maternity and Parental Leave Regulations 1999 state that where a woman is on maternity leave she has the right to be offered a suitable alternative vacancy.  This means that she will rank higher than other employees at risk of redundancy. This is a rare case of positive discrimination within the Equality Act and Parental Leave Regulations. 

If a vacancy exists that is not on substantially less-favourable terms then the pregnant employee has to be offered it. 

This does not mean that women are completely immune from being put at risk of redundancy if they are pregnant or on maternity leave.  A man might justifiably complain if a woman is excluded from a pool of potentially redundant employees.

For example in the Employment Tribunal case of Eversheds v De Belin, Mr De Belin was marked down for lack of performance and a pregnant employee in the same redundancy risk pool was given a notional maximum score. 

The Employment Appeal Tribunal decided this was wrong and that his performance should have been compared to the last time that the pregnant employee was in work, before they commenced maternity leave.

Returning to work after ordinary maternity leave:

  • An employee is entitled to return to the same job in which she was employed before her period of maternity leave on terms no less favourable than those which had applied.
  • This does not apply if the job no longer exists.
  • The rule is slightly different for pregnant employees returning from additional maternity leave. An employee is entitled to return to the same job subject to this being reasonably practicable. However, the onus is on the employer to prove that it is not reasonably practicable.
  • In many cases, it won’t be practical on behalf of the employee because of childcare commitments to return to the same role or the same hours. In this situation, an employee is entitled to submit a flexible working request. 

Pregnancy Risk Assessment

There is an obligation under Regulation 16 of Management of Health & Safety at Work 1999 for employers to carry out a pregnancy risk assessment.  All risk to the employee should be removed as far as possible.  Section 67 of the Employment Rights Act 1996 ensures an employee is suspended on full pay where it is not possible to work due to Health & Safety reasons because of pregnancy.

If an employer fails to carry out a risk assessment or a detailed enough assessment then this could be an act of direct sex discrimination. 

Compensation for Pregnancy Discrimination

Compensation is assessed in accordance with the Vento guidelines and the following bands:

  1. Band 1 - £900 - £8,800;
  2. Band 2 - £8,800 - £26,300;
  3. Band 3 - £26,300 - £44,000

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