Pregnancy and maternity are classed as one of nine protected characteristics under the Equality Act 2010. The protected period refers to the timeframe during which pregnant employees and new mothers are afforded enhanced legal protections against discrimination and unfair treatment under UK law.
Treating an employee unfavourably because of pregnancy, maternity, or taking maternity leave is unlawful and can lead to claims of pregnancy or maternity discrimination.
When is the protected period for pregnancy and maternity?
In the UK, the protected period for redundancy protection during pregnancy and maternity was extended as of 6 April 2024. The protected period now begins when an employee informs their employer of their preg
For employees who experience a miscarriage within the first 24 weeks of pregnancy, the protected period ends two weeks after the pregnancy ends. If a child is stillborn after 24 weeks, the protected period extends to 18 months from the date of birth.
If the unfavourable treatment takes the form of implementation of a decision that was taken during the protected period, it will be regarded as having taken place during that period even if the treatment does not in fact take place until after the protected period has ended (section 18(5), EqA 2010).
In Lyons v DWP Jobcentre Plus, the Employment Appeal Tribunal agreed with a tribunal’s decision that a woman, who was dismissed having been off sick with post-natal depression for several months after the end of her maternity leave, was not discriminated against because of pregnancy or sex. It reiterated that pregnancy discrimination under section 18 only occurs where a woman is treated unfavourably during the protected period.
Types of pregnancy and maternity discrimination
Workers are protected against unlawful pregnancy and maternity discrimination during the protected period, which could include:
Direct discrimination
It is discrimination to treat a person less favourably than another person because of pregnancy or maternity. This applies throughout the employment lifecycle, for example, discriminating against a candidate due to pregnancy or maternity is unlawful and could constituted direct discrimination. Employers are legally prohibited from treating a pregnant job applicant less favourably than others during the recruitment process, and employers cannot consider a candidate’s potential need for maternity leave or flexible working arrangements when making hiring decisions. Job applicants are also under no obligation to disclose their pregnancy during the hiring process. If they choose to disclose this information, it should not affect their chances of being hired.
Victimisation
It is unlawful discrimination where one person subjects another person to a detriment because the other person has done, intends to do, or is suspected of doing or intending to do, a “protected act” which in summary, is an act involving asserting rights under the Equality Act (such as raising a grievance or submitting a claim) or assisting someone else to do so (such as being a witness in a claim).
Discrimination by colleagues
If a person discriminates against another person, then the employer may be held vicariously liable unless it has taken reasonable steps to prevent such conduct from occurring. The discriminating employee may also be held personally liable.
Dismissal during the protected period
There are also separate statutory rules in the ERA 1996 protecting employees from dismissal and detriment (except in relation to pay) where the principal reason is related to pregnancy or maternity leave, including in relation to dismissal by redundancy while pregnant.
As well as being unfavourable treatment employers should be aware that dismissals for reasons connected with pregnancy, childbirth, or statutory maternity pay are automatically unfair under s99 ERA 1996 and employees bringing such claims do not need to have worked for the 2 year qualifying period required by “ordinary” unfair dismissal claims.
Supporting employees through the protected period
There are a number of steps that an employer should take once an employee informs them of their pregnancy, both to ensure the wellbeing of the employee and the needs of the organisation.
Health and Safety Risk Assessments
Employers must regularly conduct risk assessments to ensure a safe environment for pregnant employees, new mothers, and those breastfeeding. These assessments help mitigate potential hazards and ensure compliance with health and safety regulations.
Flexibility
It is also important to be open-minded and flexible with the work responsibilities of the employee. Depending on the circumstances, employers must be flexible while handling issues like arranging temporary cover during maternity leave, morning sickness, pregnancy related illness and flexible working arrangements.
Managing Absence for Pregnant Employees
Employers must not penalise employees for pregnancy- or maternity-related absences. Absences for these reasons must not be included in absence triggers—policies that track excessive absences and may lead to warnings or dismissal. Recording such leaves separately, while ensuring they do not count against the employee, demonstrates fairness and compliance with legal standards.
Employee rights on return to work
Employers risk claims of pregnancy and maternity discrimination if the worker is not permitted to return to the same job on no less favourable terms and conditions as before, or if they fail to offer them a suitable alternative role which is available. The worker may also have automatic unfair dismissal claims (if there is a dismissal) and/or unlawful detriment (if there is no dismissal).
Employees may also have the right to make a flexible working request, provided they meet the eligibility criteria, for example to rearrange their working hours in order to ensure childcare and maximise time with their child. Whilst employers are not obliged to allow the requests, they have a duty to deal with requests in a reasonable manner.
In the case of Fidessa Plc v Lancaster, it was held that an employee, who changed to part-time working on her return from maternity leave and who was subsequently made redundant, had been subject to indirect sex discrimination. This was due to a two-fold “provision, criterion or practice” of having to undertake work after 5pm and doing so at the workplace rather than at home. This was considered to be a disadvantage more likely to be suffered by women given they as a group predominantly have a requirement to exercise childcare functions and collect children from nursery at the end of the working day.
Breastfeeding Support
UK employment law requires employers to provide a safe, private, and hygienic space for breastfeeding employees to rest, express milk, and store it in a cool area.
Making an Employee Redundant During the Protected Period
When making an employee redundant during the protected period, the employer must carefully justify the redundancy decisions and avoid any discriminatory practices.
First, the redundancy must be genuine, arising from legitimate business needs such as workplace closure, reduced demand or organisational restructuring. Employers must demonstrate that the redundancy is unrelated to the employee’s pregnancy, maternity leave, or return-to-work status. Any connection to these factors may result in claims of unfair dismissal or discrimination under the Equality Act 2010.
The selection process for redundancy must be fair and transparent. Employers should use objective criteria, such as performance, skills, or qualifications, and avoid bias linked to pregnancy or maternity leave. Failing to follow fair selection processes can lead to legal disputes.
Employees on maternity leave have additional protections. If a suitable alternative role is available, they must be given priority over other employees. This obligation ensures that redundancy decisions do not unfairly disadvantage employees in the protected period.
Employers must also maintain open communication throughout the process, consulting with the employee about redundancy plans and providing clear documentation of decisions.
Unlawful discrimination claims
It is discrimination to treat a woman unfavourably during the protected period because of her pregnancy or because of an illness she has suffered as a result of her pregnancy. It is also discrimination to treat a woman unfavourably because she is on compulsory maternity leave, or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.
Unfavourable treatment in an employment context will frequently take the form of demotion, dismissal or the denial of training or promotion opportunities because a woman is pregnant or on maternity leave. It could also include taking periods of pregnancy-related sickness absence into account when deciding to trigger an absence management procedure.
It is rare for there to be direct evidence of discrimination and often the reason for the unfavourable treatment is not immediately apparent. In those cases it is necessary for the Tribunal to inquire into the employer’s mental processes to determine the factual criteria that they have applied. These are sometimes referred to as “reason why” cases.
Applying a “but for” test” may assist in ascertaining the reason the alleged discriminator acted as they did, and so whether committed unlawful discrimination (that is, but for the fact that a woman was pregnant or taking maternity leave, would she have suffered the unfavourable treatment?). However, the answer to the “but for” question will not necessarily be determinative.
A claim for pregnancy and maternity discrimination (or any discrimination) must normally be brought within 3 months of the act that being complain about.
Where there is a series of acts, or “conduct extending over a period” the three months period runs from the end of the last act in the period. It can sometimes be difficult to identify whether particular acts amount to conduct extending over a period, particularly if the period is long or there are lengthy gaps between the acts.
An employment tribunal has the discretion to extend the time limit to pursue a discrimination claim where it considers that it is just and equitable to do so.
If a successful pregnancy and maternity discrimination claim is made, an employment tribunal will generally make an award of compensation for any financial loss suffered as a result of the discrimination, and an award for injury to feelings. Occasionally an employment tribunal may also make an award for personal injury arising from the discrimination. Injury to feelings awards are in three bands, known as the Vento Bands, which set out the range of injury to feelings awards for varying levels of seriousness. The employment tribunal may also make an appropriate recommendation.
There is no cap on compensation in discrimination claims but that does not mean that all claims are valuable. The amount of an award will often largely be determined by the level of financial (usually pay) loss suffered, or likely to be suffered in the future, as a result of the discrimination.
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.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
