In this blog, we focus on the rights of pregnant employees not to be discriminated against, and practical steps to take if you feel you have been subject to any unfavourable treatment because you are pregnant or on maternity leave.
Protection
Pregnancy and maternity are both protected characteristics under the Equality Act 2010 (“EqA”). It is therefore unlawful for someone to treat you unfavourably because you are pregnant, breastfeeding, have recently given birth, because of a pregnancy-related illness, or because you are taking or are seeking to take maternity leave.
Protected Period
Under the EqA, the period for which you are protected starts when your pregnancy starts, and ends:
- If you have the right to maternity leave, at the end of your full 52-week entitlement, or when you return to work (if earlier). All employees have the right to take maternity leave; or
- If you do not have that right, at the end of the period of two weeks beginning with the end of your pregnancy (this includes miscarriage or stillbirth before 24 weeks of pregnancy). This may apply if you are a job applicant, failed to comply with notice requirements or are an agency work or self-employed.
You are also protected if a decision that your employer makes during your protected period does not take effect until after the period has ended.
Unfavourable Treatment
In order to pursue a discrimination claim, you must suffer a disadvantage as a result of the unfavourable treatment, meaning you need to be able to show that you are worse off due to the treatment you have received.
In the workplace, unfavourable treatment may include the denial of training, demotion or dismissal. It would also be unfavourable if your employer considers pregnancy-related absences when deciding whether to commence a formal absence management procedure. Likewise, if your employer refuses to allow you time off to attend antenatal appointments, or if you are subjected to a detriment as a result of taking time off without permission, this will amount to unfavourable treatment.
It could be discriminatory if your employer fails to offer you promotion opportunities, or to inform you of any vacancies, because you are on maternity leave.
You do not need to have a comparator to your situation you simply need to show you were treated unfavourably because of your pregnancy or because you took maternity leave.
It does not matter if your pregnancy or maternity is not the only reason for someone treating you unfavourably, as long as you can show that it was one of the reasons. Your employer must therefore have knowledge that you are pregnant in order for you to pursue a potential discrimination claim. It is irrelevant whether the person was acting out of good intentions or had not intended to discriminate against you.
Redundancy During Maternity
Your employer must ensure that any redundancy selection criteria is not discriminatory against you if you are pregnant or on maternity leave. For example, if your employer proposes to use attendance as one of their scoring criteria – they must discount any of your absences that were related to your pregnancy and maternity to ensure you are not put at disadvantage.
If your role is placed at risk of redundancy whilst you are on maternity leave, you are entitled to be offered the first right of refusal of any suitable alternative role, i.e. to be given priority over other potentially redundancy employees. If you are dismissed in breach of this rule then your dismissal is automatically unfair and would also likely amount to discrimination.
If you have been treated unfavourably
If you believe that you have been treated unfavourably because of your pregnancy or maternity, you should raise a formal grievance in line with your employer’s policy in the Staff Handbook.
Potential Claims
You can make a complaint to an Employment Tribunal if your employer has discriminated against you on the grounds of pregnancy or maternity.
You may also have a claim for sex discrimination if you are discriminated against after your protected period has ended.
In addition to the above, you may also be entitled to resign from your position and treat yourself as having been constructively dismissed. This is a risky position to put yourself in, so you should always seek independent legal advice before taking steps to resign.
How we can help
If you believe you may have been discriminated against, please don’t hesitate to get in touch.
From tribunal claims to draft grievances and appeal letters, we know how daunting the legal process can be for employees and we are here to help. We will take on your case from start to finish, ensuring you know exactly where you stand.
We can also support individuals by negotiating settlements agreements with your employer to get the best possible outcome for you. We provide these services whilst being as transparent as possible with you about the legal cost.
Before commencing work on your behalf, we shall do an initial review and then inform you of any additional costs and ensure you fully understand how your legal fees are calculated, in writing, before proceeding with any case.
Whilst most firms operate on an hourly rate, we prefer to offer our clients a fixed fee (wherever possible) to assist our clients in managing their legal costs.
By Crystal Boyde
Disclaimer
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk
