Employers’ Guide to Maternity Discrimination

As an employer, you have a legal duty to ensure the women you employ do not suffer maternity discrimination. This because the law protects women in the workplace from unfair treatment and dismissal for the duration of their pregnancy and whilst they are on maternity leave. Failure to meet your obligations can result in discrimination claims being made against you.

In this guide, we explain the obligations on employers to prevent maternity discrimination and the common pitfalls which can result in tribunal claims.

 

Section A: The Law on Maternity Discrimination

 

 

1. Equality Act 2010

 

Pregnancy and maternity are one of the protected characteristics under the Equality Act 2010. Section 18 of the Act states: “a person discriminates against a woman, if in the protected period in relation to a pregnancy of hers, the person treats her unfavourably because of (a) the pregnancy, and (b) because of illness suffered by her as a result of it.”

In practice, this means employers have to ensure women workers are not discriminated against because of their pregnancy, pregnancy-related illness, pregnancy-related illness absence, for taking or planning to take, maternity leave and pay or because they want to return to work while breastfeeding.

The legislation covers all employees, casual workers, agency workers, freelancers, and contractors from the first day of employment and irrespective of their length of service.

Additionally, pregnant women are protected against unfair or detrimental treatment or automatic unfair dismissal because of their pregnancy or maternity leave under the Employment Rights Act 1996 s99 (ERA), and the Maternity and Parental Leave Regulations (MPLR) 1999 reg. 19. However, protection under the ERA and MPLR only applies to employees, but for those eligible, it is a right from their first day of their employment.

 

2. Maternity and Parental Leave Regulations 1999

 

The Maternity and Parental Leave Regulations 1999 outline the rights and entitlements of employees regarding maternity leave, parental leave, and associated protections. These regulations were introduced to provide a clear legal framework for the rights of pregnant employees and those who are new parents, ensuring they are treated fairly in the workplace.

Key provisions of the Maternity and Parental Leave Regulations 1999 include:

 

a. Maternity Leave Entitlement: All pregnant employees, regardless of length of service, are entitled to up to 52 weeks of maternity leave. This leave is divided into 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML).

 

b. Parental Leave: The regulations also provide for unpaid parental leave for employees with at least one year’s service. Parents can take up to 18 weeks of parental leave for each child, to be taken before the child’s 18th birthday.

 

c. Right to Return: Employees on maternity leave have the right to return to the same job after their leave, with the same terms and conditions. If they take more than 26 weeks of leave, they can return to the same job or a similar one if the original job is no longer available.

 

d. Protection Against Dismissal: The regulations protect employees from being dismissed or treated unfairly because of pregnancy, childbirth, or maternity leave.

 

3. Protected period

 

The ‘protected period’ is a specific period of time when a woman is protected from maternity discrimination and afforded heightened legal protection from certain employment actions, particularly redundancy. It starts when the woman becomes pregnant and if she has the right to take maternity leave, it lasts until 18 months after she returns to work. The intention is to safeguard women’s employment rights and prevent discrimination during a vulnerable time.

During the protected period, employers are obligated to consider suitable alternative roles for women at risk of redundancy before making any decisions.

Following the protected period for maternity discrimination, the employee may be able to claim sex discrimination if they can demonstrate they were treated less favourably on the grounds of their sex or treated less favourably than a man in similar circumstances.

 

 

4. Examples of maternity discrimination

 

Maternity discrimination can take many forms, and any tribunals claims will be considered on the facts and circumstances of the matter. However, there are a number of common types of maternity discrimination which employers should be attuned to and take steps to prevent:

 

a. Being selected for redundancy because of the employee’s pregnancy or pregnancy-related illness.

b. Refusing to extend the employee’s contract of employment during or following a probation period.

c. Refusing to recruit someone because of pregnancy or maternity.

d. Dismissal because of pregnancy, or failure to renew a fixed term contract.

e. The refusal of a job offer, promotion opportunities, or training.

f. Reduction in the employee’s pay or hours.

g. Pressurising the employee to resign.

h. Failing to remove risks in the workplace and take action to protect the employee’s health and safety during the pregnancy.

 

5. Does maternity discrimination cover miscarriage or fertility treatment?

 

Protection from maternity discrimination for miscarriage or fertility treatment is limited, although the employee may be protected under sex discrimination legislation. Unfavourable treatment, resulting in dismissal or redundancy because of fertility treatment or sickness absence related to it, is unlikely to be protected as maternity discrimination unless the employee is in the advanced stage of IVF.

However, if the employees inform you they have reached the embryo transfer stage, the law states that you must treat them as pregnant. From this stage, the employee has the same rights as any pregnant employee, including protection from discrimination because of pregnancy, leave and pay. It can take more than several weeks before a pregnancy test confirms if the embryo transfer has been successful, although the employee does not have to let you know whether it has been a success.

It is a complex area of law, and it is sensible to seek expert advice if you face such a situation.

 

Section B: Employee Rights When Pregnant or on Maternity Leave

 

In the UK, employees who are pregnant or on maternity leave have specific rights designed to protect their health, job security, and income. These rights are enshrined in the Equality Act 2010 and the Maternity and Parental Leave Regulations 1999, which safeguard against unfair treatment and discrimination.

 

1. Pregnancy-Related Absence

 

It is unlawful to treat a pregnant employee unfairly because of a pregnancy-related illness and absence. You should expect a pregnant employee who cannot attend work because of a pregnancy-related illness to report in sick in the usual way, for which they are entitled to receive their usual sick pay.

Pregnancy-related illness includes morning sickness (including nausea and vomiting), tiredness, headache, backache, or bleeding.

If you are unsure whether the illness is pregnancy-related, you can ask the employee to provide a fit note from their GP. Pregnancy-related absence must be recorded separately from other sickness absences and should not count towards any review or trigger disciplinary points in your absence policies.

If the employee is off work because of a pregnancy-related illness within four weeks of their due date, maternity leave is triggered and begins automatically. This is unless you and your employee agree to delay it. Once their maternity leave starts, you must pay them maternity leave instead of sick pay.

 

2. Time off for Pregnancy-Related Appointments

 

Pregnant employees are entitled to time off with full pay for antenatal appointments, including medical appointments related to a pregnancy, classes for pregnancy-related relaxation, health, or fitness, and sessions that support the employee’s wellbeing and mental health.

Paid time off includes travel time to and from the appointment.

The law does not state specifically how much time can be taken off, but it must be a ‘reasonable’ amount. Pregnant employees generally require around ten antenatal appointments for a first baby,  or if this is their second or subsequent pregnancy, around seven antenatal appointments.

Following the first appointment, the employee must provide an appointment card or other evidence of their appointments if the employer requests evidence. It is important to remember that the above is an average, and every pregnancy is different.

For those employees who are adopting a child, by law, the main adopter is entitled to paid time off for up to five appointments, while the secondary adopter is entitled to take unpaid time off for up to two appointments.

The law surrounding surrogacy allows an employee to take unpaid time off for up to two antenatal appointments unless their contract says otherwise.

 

3. Maternity Leave Entitlement

 

Eligible employees are entitled to up to 52 weeks off work as maternity leave, with Statutory Maternity Pay for up to 39 weeks. Employers must ensure the employee’s job is secure during this period and that they are not disadvantaged due to their pregnancy or maternity leave.

 

4. Holiday Entitlement

 

Employees accrue holiday as usual during their time on maternity leave, including bank holidays. It is important to note that holiday leave and maternity leave cannot be taken at the same time, but it can be taken either before commencing maternity leave, or after it ends.

 

5. Maternity & Redundancy

 

A significant change in UK law regarding maternity discrimination came into effect on 6 April 2024. Previously, women were protected from redundancy only while on maternity leave. The new law has extended the redundancy protection period, starting when an employee tells their employer that they are pregnant, and ending 18 months from the exact date the baby is born. If an employee does not tell their employer the exact date, the protected period ends 18 months from the expected week of childbirth.

This means that employers must prioritise offering suitable alternative roles to pregnant women or women who have recently returned from maternity leave before considering redundancies. As such, women are now protected from redundancy for a longer period, covering a significant portion of pregnancy and the post-maternity period.

If, however, there is a need to make an employee redundant whilst they are on maternity leave, you will need to proceed with caution to ensure the redundancy process is fair and that the employee is not being dismissed because of their pregnancy or maternity leave. You must be able to show that the redundancy is genuine and necessary, and you should consult and communicate with the employee as required for a fair redundancy process, ensuring that they are offered any suitable alternative roles as a priority. Keeping in touch becomes particularly important if the employee is off work on maternity leave.

Crucially, pregnancy or maternity leave must not be part of the reason you are making the employee redundant, or you risk a claim for automatically unfair dismissal.

 

6. Pregnancy & recruitment

 

Job applicants are also protected from maternity discrimination. They are not obliged to disclose that they are pregnant during the recruitment process and employers are not allowed to ask job applicants if they are pregnant. Employers also risk discrimination claims if they do not offer a candidate a job because you believe they are pregnant.

 

7. Right to Return to Work

 

Employees returning from maternity leave have the right to return to the same role they held before their leave, provided they take 26 weeks or less (Ordinary Maternity Leave). This means they should resume their previous job with the same terms and conditions. If they take more than 26 weeks (Additional Maternity Leave), they still have the right to return to the same role unless it’s not reasonably practicable. In such cases, they must be offered a suitable alternative role with equivalent terms and conditions. This protection ensures job security for employees during and after maternity leave.

 

Section C: Notifying the Employer

 

The organisation should have a pregnancy and maternity policy in place which makes clear the procedures for notifying the employer of the pregnancy and sets out the entitlements available to workers.

Employees have to inform their employer that they are pregnant by the 15th week before their baby is due. They do not have to inform their employer in writing, but it is recommended to have a written record. This should be advised in the company’s maternity policy.

If the employee is concerned about health and safety risks in the workplace or they need to take time off to attend ante-natal appointments, they will need to inform you of the pregnancy so you can deal with any changes in a timely and appropriate manner.

If you suspect or have been otherwise informed that an employee is pregnant, but she has not yet confirmed this to you as her employer, you are advised to be considerate of her reasons for this and to respect her privacy. If you have concerns that their performance is being affected, it would be reasonable to have an informal chat to discuss if they need any support from you.

 

Section D: Dismissing a Pregnant Employee or on Maternity Leave

 

Dismissing an employee who is pregnant or on maternity leave is a highly sensitive matter, governed by the legal protections of the Equality Act 2010 and the Maternity and Parental Leave Regulations 1999. Dismissal in these circumstances must be handled with great care, as any unfair treatment could be deemed unlawful discrimination.

If you dismiss an employee whilst they are pregnant, you must give them the reasons in writing. If the dismissal relates to disciplinary action, a fair and lawful disciplinary procedure must have been followed to avoid unfair dismissal complaints.

Employers cannot dismiss an employee simply because they are pregnant or on maternity leave, as this is likely to be considered automatically unfair and discriminatory. If dismissal is necessary, for example, due to redundancy, employers must ensure that the decision is based solely on fair and non-discriminatory criteria. The employee must be offered a suitable alternative role if one is available, with terms and conditions that are no less favourable than their original position.

Key risks for employers include being accused of discrimination if the dismissal is perceived as related to the employee’s pregnancy or maternity leave. Employers should conduct thorough consultations, document all decisions carefully, and ensure that the dismissal process is fair, transparent, and free from bias. Failure to do so can lead to legal claims, reputational damage, and significant financial penalties, making it essential for employers to approach such situations with caution and fairness.

 

Section E: Legal Risks for Employers

 

If informal discussions fail to resolve issues or concerns, or the relationship has broken down, the employee can raise a grievance. You must handle the grievance fairly and lawfully. If the employee is unhappy with the result of the grievance, they can appeal it by following the procedure set out in the grievance policy.

If the above steps have not elicited a satisfactory outcome, the employee could decide to bring a claim in an Employment Tribunal after following ACAS’s mandatory early conciliation process. The time limit for making a claim to an Employment Tribunal for maternity discrimination is three months less one day from the last incidence of discrimination, or the end of a continuing act of discrimination.

The tribunal will follow a two stage “burden of proof” test. First, they will decide whether the employee has provided sufficient proof that an act of discrimination has taken place. Second, the burden of proof shifts to the employer to provide a non-discriminatory explanation for their actions.

Unlike in unfair dismissal cases, there is no ceiling on the amount of compensation an Employment Tribunal can award for pregnancy related discrimination. Compensation generally includes an award for injury to feelings and also considers any losses suffered, such as wages or pension entitlements. Awards for injuries to feelings can vary, and it can run into many thousands of pounds.

Tribunal claims are notoriously complex, expensive and protracted, with no guarantee of success. The best approach is to avoid discrimination issues arising by ensuring employer obligations are met, train managers on how to deal with pregnancy and maternity, promote positive communications with employees and to try to resolve issues before they escalate.

 

Section F: Summary

 

Maternity discrimination refers to the unfair treatment of an employee due to her pregnancy, maternity leave, or any related circumstances. In the UK, such discrimination is illegal under the Equality Act 2010, which protects employees from being disadvantaged because they are pregnant or have recently given birth. Discrimination can occur in various forms, including being overlooked for promotions, being dismissed, or being treated less favourably in terms of pay or work conditions.

Employers in the UK must be aware of the legal obligations to avoid maternity discrimination. It is essential to treat pregnant employees and those on maternity leave fairly, ensuring they receive the same opportunities and treatment as other employees. Employers must be particularly cautious during periods of redundancy or restructuring, as selecting an employee for dismissal due to her maternity status can lead to claims of discrimination.

Key risks for employers include potential legal action, financial penalties, and damage to reputation if they are found to have discriminated against an employee. Proper training for managers, clear communication of maternity rights, and thorough documentation of all employment decisions are important considerations to mitigate these risks and ensure compliance.

 

Section G: Need Assistance?

 

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.

 

Section H: Maternity Discrimination FAQs

 

What is maternity discrimination?

Maternity discrimination occurs when a pregnant employee or a new mother is treated unfairly or less favourably because of her pregnancy, maternity leave, or related circumstances. This can include anything from being denied a promotion to being unfairly dismissed.

 

Can an employer refuse maternity leave?

Employers cannot refuse maternity leave. All pregnant employees are entitled to up to 52 weeks of maternity leave, regardless of how long they have been employed.

 

Is it legal to dismiss an employee during maternity leave?

It is unlawful to dismiss an employee because she is pregnant or on maternity leave. However, if a fair and non-discriminatory reason such as redundancy arises, dismissal may be legal, provided all proper procedures are followed, and the employee is offered a suitable alternative role if available.

 

Do employees accrue holiday entitlement during maternity leave?

Employees continue to accrue holiday entitlement while on maternity leave. This includes statutory annual leave, which can be taken before or after maternity leave.

 

What happens if an employee becomes pregnant again while on maternity leave?

If an employee becomes pregnant while on maternity leave, she is entitled to maternity leave and pay for her second pregnancy. The process starts anew, with the same rights as the first maternity leave.

 

Can an employee request flexible working after maternity leave?

All employees in the UK have the right to request flexible working arrangements, such as reduced hours or working from home, after maternity leave. Employers must consider such requests seriously and can only refuse them on reasonable business grounds.

 

What should an employer do if an employee reports maternity discrimination?

Employers should take any claims of maternity discrimination seriously. A thorough investigation should be conducted, and the employee should be informed of the outcome. It’s important to handle such matters sensitively and in accordance with legal procedures to avoid potential legal action.

 

Are employees entitled to pay during maternity leave?

Employees are entitled to Statutory Maternity Pay (SMP) for up to 39 weeks of maternity leave, provided they meet certain eligibility criteria. The first six weeks are paid at 90% of the employee’s average weekly earnings, and the remaining 33 weeks are paid at a standard rate, which is reviewed annually by the government.

 

Section I: Glossary

 

 

Term	Definition
Maternity Discrimination	Unfair treatment of an employee due to pregnancy, maternity leave, or related circumstances.
Equality Act 2010	UK legislation that protects against discrimination based on various protected characteristics, including pregnancy and maternity.
Maternity Leave	The period of leave from work that a pregnant employee is entitled to take before and after the birth of her child, up to 52 weeks.
Ordinary Maternity Leave	The first 26 weeks of maternity leave, during which the employee has the right to return to the same job.
Additional Maternity Leave	The second 26 weeks of maternity leave, during which the employee has the right to return to the same job or, if not practicable, a similar role.
Statutory Maternity Pay (SMP)	Payment made to eligible employees during maternity leave, usually for up to 39 weeks.
Parental Leave	Unpaid leave that parents can take to look after their child, up to 18 weeks per child, to be taken before the child’s 18th birthday.
Health and Safety Assessment	An evaluation conducted by employers to identify risks to the health and safety of pregnant employees and new mothers in the workplace.
Flexible Working	Work arrangements that allow for flexibility in terms of working hours, location, or patterns, which employees can request after maternity leave.
Redundancy	The process of terminating an employee’s contract because the role is no longer needed. Special protections apply for those on maternity leave.
Unfair Dismissal	Termination of employment without a fair reason or without following proper legal procedures, including dismissals related to pregnancy or maternity leave.
Grievance Process	The formal procedure that an employee follows to raise a complaint about unfair treatment or other workplace issues.

 

 

Section J: Additional Resources

 

ACAS (Advisory, Conciliation and Arbitration Service)
https://www.acas.org.uk/maternity-paternity-and-adoption-leave
A comprehensive guide on maternity, paternity, and adoption leave, including employee rights and employer responsibilities.

 

Equality and Human Rights Commission (EHRC)
https://www.equalityhumanrights.com/en/pregnancy-and-maternity-workplace
Detailed information on pregnancy and maternity discrimination, including legal protections and case studies.

 

GOV.UK – Maternity Pay and Leave
https://www.gov.uk/maternity-pay-leave
Official government guidance on maternity pay and leave, including eligibility criteria and application processes.

 

Maternity Action
https://maternityaction.org.uk/advice-line/
Offers free advice on rights during pregnancy and maternity leave, including resources for employers and employees.

 

Health and Safety Executive (HSE)
https://www.hse.gov.uk/mothers/
Guidance on workplace health and safety for new and expectant mothers, including risk assessment requirements.