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Pregnancy and Maternity Discrimination

PLEASE NOTE: This page is intended to give general information about the law but is not intended as legal advice and you must not rely on it as such, nor is any liability accepted if you do rely on it. The law may change from time to time and we cannot include all elements of the law and its application in this summary. For further advice relating to your circumstances, please contact us.

 

 

What is pregnancy and maternity discrimination?

Pregnancy and maternity are one of nine "protected characteristics" under the Equality Act 2010; the others being age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. The regime concerning discrimination in employment set out in the Equality Act takes a consistent approach across the protected characteristics where possible.

Unlike the other 8 protected characteristic, there is no definition of pregnancy and maternity.  There is, however, reference to the “protected period”.  The protected period starts when a woman’s pregnancy begins and ends:

  • If she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period, or (if earlier) when she returns to work after the pregnancy; or

  • If she does not have that right, at the end of the period of two weeks beginning with the end of the pregnancy.

Part 5 of the Equality Act protects both job applicants and those "in employment" (under a contract of employment, a contract of apprenticeship or a contract personally to do work). 

This includes employees, workers and a wider category of individuals who might otherwise be regarded as self-employed, provided that they are "in employment" and that their contract places them under a personal obligation to perform the work in question. Post-employment acts (such as a former employer giving someone a bad reference because they brought a claim) are also covered.

Types of pregnancy and maternity discrimination

Types of pregnancy and maternity discrimination are:

  • Unfavourable treatment.  It is discrimination to treat a woman unfavourably during the protected period because of her pregnancy or because of an illness she has suffered as a result of her pregnancy.

  • Unfavourable treatment.  It is discrimination to treat a woman unfavourably because she is on compulsory maternity leave, or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

  • Direct discrimination.  It is discrimination to treat a person less favourably than another person because of pregnancy or maternity.  (It is likely to be preferable to pursue a claim under 1. or 2. above if the treatment occurred during the protected period).

  • Victimisation.  It is unlawful discrimination where one person subjects another person to a detriment because the other person has done, intends to do, or is suspected of doing or intending to do, a “protected act” which in summary, is an act involving asserting rights under the Equality Act (such as raising a grievance or submitting a claim) or assisting someone else to do so (such as being a witness in a claim).

 

Discrimination by colleagues

If a person discriminates against another person, then the employer will be held liable unless it has taken reasonable steps to prevent such conduct from occurring.  The discriminating employee may also be held personally liable.

Deadlines for bringing a claim

A claim for pregnancy and maternity discrimination (or any discrimination) must normally be brought within 3 months of the act that you want to complain about.

Where there is a series of acts, or “conduct extending over a period” the three months period runs from the end of the last act in the period. It can sometimes be difficult to identify whether particular acts amount to conduct extending over a period, particularly if the period is long or there are lengthy gaps between the acts.

An employment tribunal has the discretion to extend the time limit to pursue a discrimination claim where it considers that it is just and equitable to do so. However, you should not rely on getting such an extension and should be mindful of potential deadlines when seeking advice.

Compensation

If a successful pregnancy and maternity discrimination claim is made, an employment tribunal will generally make an award of compensation for any financial loss suffered as a result of the discrimination, and an award for injury to feelings. Occasionally an employment tribunal may also make an award for personal injury arising from the discrimination. Injury to feelings awards are in three bands, known as the Vento Bands, which set out the range of injury to feelings awards for varying levels of seriousness.  The employment tribunal may also make an appropriate recommendation.

There is no cap on compensation in discrimination claims but that does not mean that all claims are valuable. The amount of an award will often largely be determined by the level of financial (usually pay) loss suffered, or likely to be suffered in the future, as a result of the discrimination.

To talk in confidence regarding any concerns you may have regarding pregnancy and maternity discrimination, please contact us.

Please see our More about……Maternity leave and benefits factsheet for information about other workplace rights afforded to women who are pregnant and/or on maternity leave.