Employees are protected by pregnancy and maternity discrimination law from day one of their employment.
The Equality Act (s.18) states that when a woman is treated unfavourably on the grounds of her pregnancy or because she wants to take maternity leave this is known as ‘pregnancy discrimination’. If an employee is pregnant, breastfeeding or has recently given birth and someone treats them unfairly, they may have been discriminated against and they may be able to do something about it. The employee must suffer a disadvantage as a result of the unfair treatment.
The law says that, if this is the case, they have been treated unfavourably.
So, what does unfavourable treatment mean?
Citizens Advice explains that unfavourable treatment means that an employee is worse off because of the discrimination - for example, by not getting a promotion at work due to pregnancy.
Pregnancy or maternity doesn’t have to be the only reason for unfavourable treatment, as long as it’s one of the reasons. It is still unfavourable treatment, regardless of whether the discrimination was not intentional or meant with good intentions.
Examples of unfavourable/detrimental treatment include:
- selection for redundancy on the grounds of pregnancy,
- dismissal because of pregnancy,
- refusal of training or promotion opportunities,
- reduction of pay or hours,
- pressure to resign and;
- failure to carry out a risk assessment and take action to protect the employee’s health and safety.
When does pregnancy discrimination apply?
Pregnancy discrimination applies if an employee can prove that the reason for their unfair treatment is because of their pregnancy. Once the employee tells their employer about their pregnancy they are protected against unfair dismissal, unfair treatment and discrimination on the grounds of pregnancy.
Remember, it is entirely up to the employee to choose when they want to tell their employer and colleagues about their pregnancy.
By law, the employee must tell their employer about their pregnancy by the 15th week before the baby is due. This is also the latest date for giving notice to take maternity leave.
However, it is worth bearing in mind that employees may need to tell their employer earlier in order to ask for action to protect their health and safety or to take time off for antenatal care. Employees are also protected against unfair dismissal, unfair treatment and discrimination on the grounds of pregnancy once they have told your employer of their pregnancy. This is called the protection period.
The protected period ends when their maternity leave ends (if they are entitled to maternity leave) or two weeks after the baby is born (if they don’t have the right to maternity leave). All employees have the right to take maternity leave.
If an employee is treated unfavourably after this then this becomes discrimination because of their sex rather than pregnancy discrimination.
It is also unlawful to discriminate against an employee, once they have given birth, for the following reasons:
- they’re on maternity leave
- they’ve been on maternity leave
- they’ve tried to take maternity leave which they’re entitled to
The only time it is acceptable to treat an employee unfavourably because of pregnancy is when there are health and safety reasons for doing so. For example, in a gym/health club they will refuse use of the sauna as this can be harmful to the pregnant individual and their unborn child.
The service provider must reasonably believe that there is a risk to health and safety if the service was given. It is only unlawful if they don’t stop other people from using the service for health and safety reasons too.
If an employee thinks they have been discriminated against it is important to try and resolve it, whether directly with their employer, informally and amicably, or by talking to their union, HR department or a more senior manager.
The gov.uk website has further information on employee rights and pregnancy discrimination.