Equality Act 2010
The Equality Act 2010 (the Act) prohibits employers from treating an employee unfavourably from the beginning of her pregnancy until the end of her maternity leave. This includes any illness suffered as a result of the pregnancy. The Act also extends protection to job applicants, partners, workers, and some self-employed contractors. Unfavourable treatment can result in claims for direct discrimination, indirect discrimination, or harassment on the grounds of sex. Employers should be aware that even employees not eligible for statutory maternity pay are still protected from discrimination.
Employment Rights Act 1996
Under the Employment Rights Act 1996, it is unlawful to dismiss an employee or subject her to any detriment because of her pregnancy or maternity leave. This includes protection from unfair dismissal and the right to written reasons for dismissal if it occurs during pregnancy or maternity leave. The Act also mandates that pregnant employees are entitled to reasonable paid time off for antenatal care.
Maternity and Parental Leave Regulations 1999
The Maternity and Parental Leave Regulations 1999 provide additional protections, including the right to return to the same job after maternity leave and the right to be offered suitable alternative employment in redundancy situations. These regulations ensure that absences related to pregnancy and maternity are not counted against an employee in redundancy selection criteria.
Common forms of discrimination
Direct discrimination
Direct discrimination occurs when an employee is treated less favourably because of her pregnancy or maternity. Examples include demotion, denial of promotion opportunities, or dismissal due to pregnancy-related sickness absences. For instance, in the case of Mulla v Enigma Fashions UK Limited, the Employment Tribunal awarded £55,963.58 in compensation for pregnancy discrimination.
Indirect discrimination
Indirect discrimination involves policies or practices that disproportionately affect pregnant employees. For example, a sickness absence policy that does not account for pregnancy-related illnesses could be considered indirectly discriminatory. Employers must ensure that such policies are applied fairly and do not disadvantage pregnant employees.
Harassment and victimisation
Harassment related to pregnancy or maternity can include inappropriate comments or actions that create a hostile work environment. Victimisation occurs when an employee is treated unfavourably for making a complaint about discrimination. Employers should have clear anti-harassment policies and provide regular training to prevent such behaviour.
Practical steps for employers
Policy implementation
Employers should have a comprehensive written equal opportunities policy that clearly outlines expectations and prohibits discriminatory behaviour. This policy should be regularly reviewed and updated to ensure compliance with current laws. Training should be provided to all employees to ensure they understand the policy and the consequences of breaching it.
Risk assessments
Conducting risk assessments for pregnant employees is crucial. These assessments should identify any potential health and safety risks and outline measures to mitigate them. Adjustments to working conditions or hours may be necessary, and in some cases, offering suitable alternative work or suspending the employee on full pay may be required.
Handling complaints
Employers should have a clear procedure for handling complaints of discrimination. This includes informing line managers, raising formal grievances with HR, and keeping detailed records of all incidents and actions taken. Employers should also ensure that any complaints are investigated thoroughly and resolved promptly.
Additional considerations
Redundancy and maternity leave
Employers must be cautious when making employees on maternity leave redundant. The selection criteria must be fair and not based on pregnancy or maternity leave. Employees on maternity leave should be offered any suitable available vacancies in priority to other employees.
Flexible working requests
Employers should give serious consideration to flexible working requests from employees returning from maternity leave. Failure to do so could result in claims of indirect sex discrimination, as seen in the case of Thompson v Scancrown Ltd, where the employer was ordered to pay significant compensation for not properly considering a flexible working request.
Health and Safety
Employers have a legal duty to protect the health and safety of pregnant employees. This includes conducting individual risk assessments and taking appropriate action to address any identified risks. Failure to do so can result in claims of discrimination, as demonstrated in the case of Chief Constable of Devon and Cornwall v Town where a pregnant police officer was automatically moved from her front-line role to an office job, even though risk assessments showed she could still work in her original role with some restrictions. This was found to be both direct and indirect discrimination against her due to her pregnancy.
By implementing these measures, employers can create a supportive and compliant workplace environment, reducing the risk of costly discrimination claims and fostering a positive organisational culture.
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