Last reviewed 14 April 2022

The Equality Act 2010 (EqA) is explicit in its prohibition of pregnancy and maternity discrimination. Yet, in the period 2020–2021, the employment tribunals in the UK heard 1435 cases of pregnancy and maternity-related detriment or dismissal, making it the 5th most common discrimination claim.

Introduction

Pregnancy and maternity rights are, on the face of it, well protected. However, the tribunal statistics show that these are rights that are still being infringed and are therefore still in need of protection. Indeed, the Government announced in 2019 that they would be extending this protection in relation to redudancy, although as yet this has not been introduced.

The law

Section 18 of the EqA protects those who are pregnant or are new mothers in the following ways.

  • Creates a “protected period” from the point of pregnancy to the end of maternity leave or two weeks after the end of the pregnancy if she is not entitled to leave (such as in the case of a miscarriage before 24 weeks of pregnancy).

  • Discrimination during the “protected period” where she is treated unfavourably because of pregnancy or a related illness.

  • Discrimination during the “protected period” where she is treated unfavourably because of compulsory, ordinary or additional maternity leave.

Section 39 of the EqA states:

“Employees and applicants

  1. An employer (A) must not discriminate against a person (B)

  2. in the arrangements A makes for deciding to whom to offer employment; …

  3. by not offering B employment.”

There is no legal defence to this kind of discrimination, regardless of the inconvenience that this may cause, unless there is a “genuine occupational requirement”.

Section 13(6)(b) of the Equality Act 2010:

“no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth.”

The protection

Failure to offer employment

Discrimination protection applies for the entirety of the employment relationship, including in the application and hiring stage. Where a woman is denied employment because of her pregnancy, then she is protected by the EqA.

The case of Kinlay v Bronte Film and Television Limited (August 2021) gives us a good example of this. In this case, a pregnant actor had a small role in a TV series. She was replaced in this role when her pregnancy was disclosed, on the grounds that a pregnancy for her character would not fit the role, and therefore it was a “genuine occupational requirement” that the actor not be pregnant. There was also a concern that the pregnancy may cause her to be too unwell to act.

This argument was dismissed by the Employment Tribunal (ET). As this was a recorded performance and not live, there were lots of options that could be used to conceal the pregnancy. Additionally, the small risk of her missing filming was not a reasonable ground to refuse employment.

As a result of the discrimination she had suffered, she was awarded £6000 by the ET for injury to feelings.

Detriment

Where an individual is subjected to action short of dismissal, this is known as a “detriment”. Unlike other discrimination claims, when assessing detriment, the question is not “but for” the pregnancy and maternity, would she have been treated differently, but if “the reason why” is protected (South West Yorkshire Partnership NHS Foundation Trust v Jackson). Discrimination can arise, therefore, when a woman suffers a detriment where the reason she is treated less favourably was her pregnancy or maternity leave.

In the case of Prosser v Community Gateway Association Ltd, the ET had to consider if a pregnant employee suffered a detriment in being sent home from work during the worse of the Covid pandemic, when the workplace was deemed to pose too great a risk for her. She argued that these actions where discriminatory on the grounds of her pregnancy.

Her claim was rejected by the ET in that these actions were not to cause her a detriment but instead were “a positive step being taken to protect her in complying with legislation designed to provide her with protection”.

Dismissal

Dismissal where the reason why is pregnancy and maternity, is clearly discriminatory.

In the case of Stokes v Glenham Property Management Ltd, we see a dismissal that whilst connected to pregnancy (in this case, a miscarriage), did not fall within the “protected period” outlined in s.18 of the EqA. As such, the ET had to consider what, if any, protection the claimant should be given.

The claimant here suffered a miscarriage prior to taking pre-booked leave. She then submitted a fit note after the leave, resulting in an absence of more than two weeks after the miscarriage. Shortly before her return to work, she was dismissed without warning, as she had been found “not fit to complete [your] role” and that another fit note could not be accepted.

As the dismissal fell outside the “protected period’ a claim for sex discrimination was raised and was successful. Pregnancy and miscarriage is a feature unique to the female sex. Would a male comparator have been dismissed for two weeks’ sickness absence? The ET found no, and that the difference was the miscarriage.

She was awarded around £10,000 to compensate for this discriminatory action.

Redundancy

Special protections also apply in the case of redundancy. During the “protected period”, an employee cannot be selected for redundancy because of pregnancy or maternity. This does not mean they cannot be selected for redundancy at all, however it does place a greater burden on employers to justify the redundancy itself and the selection process.

In Eversheds Legal Services Ltd v De Belin, a male employee brought a claim for sex discrimination on account of having been selected for redundancy in preference to a female colleague who was on maternity leave. During the selection process, the employer had given the female employee the maximum notional score for one of the selection criteria, as it was not possible to measure this time as a result of her maternity leave. This ultimately gave her a half point lead over her male colleague and led to his selection for redundancy.

The EAT ruled that the obligation to protect employees who are pregnant or on maternity leave relates only to what is “reasonably necessary to compensate them for the disadvantages occasioned by their condition”. What this does not mean is that these employees should get favourable treatment. Compensation to account for pregnancy and maternity should be limited to that which is proportionate for the disadvantages caused by pregnancy or maternity leave. As the measures here had gone too far by giving favourable treatment, the male employee was successful in his sex discrimination claim.

Had the selection process been approached differently, the respondent could have relied on s.(13)(6)(b), which essentially means that men cannot claim sex discrimination as a result of special treatment afforded to women on account of maternity leave, as long as the action taken was proportionate.

Plans for reform

Between January and April 2019, consultation took place by the Government on extending the scope of the current protection against redundancy provided for those on maternity leave by the Maternity and Parental Leave, etc Regulations (1999). This would mean that pregnant women and new mothers who had recently returned to work would have the same protection as is currently provided for those on maternity leave, for up to six months after the return from maternity leave.

This was part of a number of new rights, such as carers leave, that were to be included in the Employment Bill, first put forward in late 2019. This has been pushed back a number of times, and the current indications are that it will once again not feature in the Queen’s speech in May 2022. Pregnant employees and new mothers must therefore wait a little longer to gain extra protections.