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Insight

Pregnancy and maternity rights at work 20 Dec 2022

The ‘protected period’

Women who are pregnant or on maternity leave are protected from being discriminated against during their ‘protected period’. The ‘protected period’ starts when their pregnancy begins and ends either when she returns to work following a period of maternity leave or, if she does not have the right to maternity leave, at the end of 2 weeks following the end of the pregnancy.

 

What protections do women have?

Essentially, it is unlawful for an employer to treat a woman unfavourably:

  • because she is pregnant or because of an illness she has suffered as a result of her pregnancy; or
  • because she is on compulsory maternity leave or because she is exercising, or is seeking to exercise her right to maternity leave.

Unlike other protected characteristics, the right not to suffer harassment on the grounds of pregnancy or maternity is not covered by the Act.  However, it may be possible for a woman to purse a harassment claim on the grounds of her sex.  Harassment is where someone engages in unwanted conduct related to the person’s sex that has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

A maternity equality clause is implied into a woman's contract regarding the calculation of her pay to prevent her from being paid less because she is pregnant or on maternity leave. Further details about the calculation of statutory maternity pay can be found here.

Employers are prohibited from victimising someone (including job applicants) because they have made or intend to make a pregnancy and maternity discrimination complaint, or because they have done or intend to do other things in connection with the Act (e.g. they have issued a claim).

 

Can a prospective employer ask whether you are pregnant?

You do not have to tell a prospective employer that you are pregnant during the recruitment process. If you are asked such a question, you may have a claim for either sex discrimination (on the basis a man would not have been asked such a question) and/or pregnancy discrimination.

If you are not offered a job, or a job offer is withdrawn, because a prospective employer discovers you are pregnant, you may have a pregnancy discrimination claim. 

The general rule is that an employee must inform her employer of her pregnancy by the 15th week before her expected week of childbirth to be entitled to take maternity leave and pay. If you start a new job after that date has passed, you must tell your employer as soon as is reasonably practicable.

 

Antenatal appointments

Pregnant women are entitled to paid time off to attend antenatal appointments. If your employer does not give you permission to attend an appointment you can still go to it - refusing to let you go and any detriment you are subjected to for going without their permission, e.g. they refuse to pay you, will be unlawful. 

 

Pregnancy related absences and sickness

Any pregnancy-related absences during the protected period cannot be taken into account as part of any attendance management process, or when deciding whether to dismiss someone, e.g. in a redundancy exercise. 

 

Promotion opportunities

Employers must ensure that women who are pregnant or on maternity leave are not discriminated against regarding promotional opportunities. For example, it would be unlawful discrimination for an employer to:

  • not inform a woman about any suitable vacancies;
  • discourage an employee from applying for a promotion; and/or
  • not promote someone who is the best person for the job, because they are pregnant or on maternity leave.

Dismissal

It would be automatically unfair and discriminatory to dismiss a woman because she is pregnant or because of any reason linked to her pregnancy e.g. she has attended a medical appointment.  That said, it does not mean a pregnant woman can never be dismissed - the employer must be able to show dismissal was for a fair reason unconnected with her pregnancy and that a fair procedure was followed. For more information about dismissals and what rights individuals may have if they are dismissed see our ‘What is unfair dismissal?’ Insight. 

 

Redundancy situations

The above includes dismissals on grounds of redundancy. Any absences connected with pregnancy/maternity should not be a factor in selecting people for redundancy.  For example, such absences should be ignored when scoring an employee on their attendance.

Women on maternity leave have additional protections when it comes to redundancy situations - they should be offered any suitable alternative vacancy in priority over any other employee also at risk of redundancy.  

 

Who can be liable for discriminatory conduct?

It is not just the employer who may be liable for any discriminatory treatment; individual employees (such as managers) and third parties (such as agents) can be held liable as well.  Therefore, when issuing a claim in the Employment Tribunal it is advisable to consider issuing claims against any decision makers/perpetrators, as well as your employer. 

 

Deadline to bring a claim

Normally, you have three months less one day from the date of any act of discrimination, or if there is a continuing act of discrimination three months less one day from the last act, in which to issue a claim in the Employment Tribunal.

Where the act complained of is a dismissal, time starts to run from the date the dismissal takes effect.

Prior to issuing a claim you need to contact the conciliation service ACAS to commence Early Conciliation (EC). If EC is unsuccessful you will be given a Certificate Number, which you will need to put on the ET claim form you submit to the Tribunal.  The actual deadline to commence a claim in the Tribunal will depend on when you start EC and the date the certificate is issued.

 

Disclaimer: The information and opinions within this guide are meant for general information purposes only.  They are not intended to constitute legal or other professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.
 
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