What is Maternity and Pregnancy Discrimination?

The Equality Act 2010 and the Maternity and Parental Leave etc. Regulations 1999 are in place to protect pregnant women and returning parents from less favourable treatment following maternity and parental leave periods.

We discuss the main issues affecting women during their pregnancy and maternity leave. It is important to highlight that we are seeing an increase in discriminatory practices against the non-birth parent who has taken parental leave and been subject to adverse action. If this is happening to you, contact us for a consultation as you will need specific advice, but you will find helpful information below even if you have not taken maternity leave.

The Equality Act protects against adverse treatment because of pregnancy and/or maternity leave. Unlike other protected characteristics, it is not necessary to compare your treatment to another who does not share the protected characteristic. Nevertheless, you need to show that the treatment you were subject to was because of the maternity leave/pregnancy.

Discrimination of this kind is widespread, and employers do not view it as severe as other forms of discriminatory conduct. Unfortunately, the nature of this discriminatory conduct can have a significant and detrimental impact on a woman’s future career.

Examples of discrimination:

  • Failure to pay time off for ante-natal appointments
  • Harassment due to pregnancy 
  • Denial of promotion opportunities
  • Unfair selection for redundancy

Discrimination can occur during pregnancy. However, we see disadvantage most frequently arising once maternity leave has started. Often women find that a restructure coincides with their maternity leave. Sometimes women are overlooked from the consultation process. Or, at the end of the maternity leave, your role is made redundant and your maternity cover ends up with a more senior position absorbing many of your previous responsibilities.

Get in touch to discuss your various options and strategies that might be available to you.

Time limits are important, and it is worth getting some advice at the earliest opportunity as this will very likely inform your next steps.

Next steps may include:

Your rights during maternity leave are

  • Protection is available against unfair treatment, unfair dismissal and discrimination because of pregnancy, childbirth and maternity leave;
  • 52 weeks maternity leave with the right to return to work
  • Entitlement to all your contractual terms and conditions during maternity leave (apart from pay)
  • Entitlement to 39 weeks’ maternity pay (if you meet the qualifying conditions)
  • Being offered a suitable alternative vacancy (if one exists) if you are at risk of redundancy during maternity leave
  • Requesting flexible working at the end of maternity leave

How to prove discrimination

The standard of proof in discrimination cases is the normal civil standard, namely whether, on the balance of probabilities (i.e. ‘more likely than not’ or 51% likely) discrimination occurred.

The burden of proof has two stages:

  1. First, the worker must prove facts from which an employment tribunal could conclude, in the absence of an adequate explanation from the employer, that discrimination had occurred (not could have occurred). This is often referred to as the worker establishing a ‘prima facie’ case.
  2. If a prima facie case is established, the burden of proof then shifts onto the employer to prove that it/he/she did not commit discriminatory conduct.

Evidence in direct discrimination cases

Employment tribunal cases where there is strong, direct evidence of discrimination are rare. Cases where there is clear evidence of discrimination tend to settle without a hearing because most employers want to avoid the adverse publicity those hearings might attract.

In most discrimination cases, an employment tribunal makes a decision based on what ‘inferences’ it can draw from the presented facts. As a result, there can often be lots of potentially relevant inference evidence which claimants can be tempted into using to prove their discrimination case. In most circumstances, claimants should resist that temptation as good points in a case can be discredited by a claimant arguing weak points which may be difficult to prove and lead to excessive and inconclusive evidence. This can have the effect of clouding the real issues, detract from any stronger evidence and unnecessarily lengthen the hearing.

Key point

Discrimination cases are generally more complex than other types of employment tribunal claims, with the average discrimination hearing being much longer than other hearings. This makes evidence selection even more important.

Frequently asked questions

Do I need comparative evidence?

In pregnancy and maternity leave discrimination cases, unlike other protected characteristics, it is not necessary to establish that a comparator was treated better than you.

Is my employer responsible for acts of discrimination by employees?

Employers will generally be liable for acts of discrimination by employees who are acting in the course of their employment. This is known as vicarious liability. Discrimination claims can also be brought directly against individuals, although it is rare for claims to be brought against an individual without a claim also being brought against the employer. If claims are brought against both the employer and individual(s), the employer can decide whether to try to defend itself separately from the individual(s) by arguing that it took all reasonably practicable steps to prevent the discrimination.

Do I need to raise a grievance?

The law does not require you to raise a grievance but, if you are still employed, in most cases you should do so before bringing a claim for discrimination, which you are entitled to do whilst you are still employed.

Do I qualify to bring a discrimination claim?

Yes, if you believe you have been discriminated against there is no length of service or other qualifying requirement.

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If you feel you have a case and want the best possible advice, get in touch with our team now

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