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Pregnancy Discrimination

You have received a positive pregnancy result and you are delighted.  Your boss, however, seems less than thrilled to hear the news that you are an expectant mother.  You subsequently detect a change in the way you are treated at work. Perhaps it relates to the availability of opportunities or invitations to participate with clients and projects that you suddenly notice dry up. You may have even been placed at risk of dismissal because of redundancy or been notified that your fixed term contract will not be renewed.

Unfortunately, pregnancy discrimination in the workplace continues despite legal protection prohibiting it.  Research shows that it has become more prevalent since the start of the Coronavirus pandemic. Women are more likely to be made redundant or to be furloughed. A TUC survey of 3,400 women in June 2020, found that one in four pregnant women and new mothers surveyed had experienced unfair treatment or discrimination at work.  This has led to calls from a range of organisations calling for additional protections to be introduced for pregnant women in the workplace.

This news alert aims to provide senior executives with helpful information regarding the legal protection for pregnant workers and top tips to follow if you feel the adverse treatment is connected with your pregnancy or related illness.  We always recommend obtaining early legal advice.

The law

The law protects women against unfavourable treatment because of pregnancy or because of a pregnancy related illness.

Discrimination law is set out in the Equality Act 2010 and it is wide enough to protect not just employees, but also workers (including those on zero hours, agency, freelance and those on fixed term contracts), partners of LLPs, job applicants and self-employed contractors.

For a claim of pregnancy discrimination to succeed in the employment tribunal, a claimant must show, using the balance of probabilities test (meaning it is more likely than not based on the evidence), that the detrimental treatment or, if dismissed, that the reason for the dismissal, is because of pregnancy or a related illness.  To defend the claim, the employer will have to show that the treatment complained of is because of a non-discriminatory reason. If the employer cannot show there was a non-discriminatory and lawful reason for the treatment complained of, the claim will likely succeed.  If there is a dismissal, the employer will also have to show in addition that it followed a fair process and that its decision was reasonable in all the circumstances.

As well as uncapped loss of earnings (subject to the claimant’s actual losses to include the loss of salary and benefits accruing each month), claimants in discrimination claims can recover injury to feelings awards of up to £45,000 for the upset and distress caused by the discriminatory treatment.

The financial losses for the dismissal of a pregnant worker are likely to be to be substantial.  The financial loss will include the loss of salary up to the date maternity leave starts, any loss of statutory and enhanced maternity benefits, loss of bonus, promotion opportunities, etc. In addition, the claimant will be entitled to recover such ongoing losses as the tribunal considers just and equitable, if unable to obtain alternative work on the same status and pay after her period of maternity leave.

On being notified that a worker is an expectant mother, employers have an obligation to conduct a risk assessment which should check for any known risks that could affect them. This is particularly important in light of the risk of Covid-19 infection. If risks are identified and cannot be removed, the employer should consider adjusting the worker’s conditions or hours.  If that is not possible, an employer should offer suitable alternative work on the same terms and conditions for the duration of the pregnancy.  If that is not possible, the employer should suspend the worker on full pay for as long as is necessary to protect her health and safely and that of her unborn baby.

The employer’s duties to conduct risk assessments came under the spotlight in the wake of covid-19, particularly for those women in front line services.  During the initial months of the pandemic, the Royal College of Obstetricians and Gynaecologists advised that only those over 28 weeks of gestation were at significant risk.  Current government guidance now includes all pregnant workers as ‘clinically vulnerable’ and in some cases ‘clinically extremely vulnerable’ and should therefore not be required to continue attending work unless the risk assessment deems it safe for them to do so.  Employers must follow current active national guidelines on social distancing.

A pregnant worker is also entitled to time off on full pay to attend any ante-natal appointments.

The limitations of existing law to protect pregnant workers

One of the main limitations of current pregnancy discrimination law is the lack of protection when a pregnant employee is made redundant before maternity leave starts. The employer has no obligation to give preference for any suitable alternative role that may be available, contrary to the position that pertains to those on maternity leave.

The Equality and Human Rights Commission’s written evidence to the Committee’s ‘Unequal Impact’ umbrella inquiry described pregnancy and maternity discrimination as one of the “most urgent, immediate threats to equality” during the pandemic.  Amongst the proposals for change contained in the report, it proposed to introduce a blanket ban on redundancies during pregnancy. In May 2021, Maria Miller (MP) Chair of the Women and Equalities Committee introduced a 10-Minute Rule Bill to give new protections for pregnant women and mothers.  It remains to be seen whether the current government acts to introduce new legislation to enhance the legal protection for pregnant workers.

Typical workplace pregnancy discrimination scenarios

  1. A pregnant employee is selected for redundancy
  2. A worker suffers from a pregnancy related illness and the employer penalises her
  3. Penalising a pregnant worker for attending ante natal appointments
  4. Non-renewal of a fixed term contract
  5. The employer makes inappropriate comments about pregnancy
  6. On informing the employer of her pregnancy, a worker is side lined or excluded
  7. Dismissal or pressure on the pregnant worker to resign
  8. A performance issue arises with the pregnant worker but the employer avoids telling her to avoid “stressing her out because she is pregnant”

Top tips

  1. Inform your employer at an early stage of your pregnancy to protect your legal position.
  2. If you feel that you start to experience detrimental treatment because you are pregnant, make sure you keep a diary noting down as much detail as possible of any incidents, including the name(s) of those involved and dates. This will be helpful contemporaneous evidence for an employment tribunal and for any negotiations to settle any potential claims.
  3. Keep a record of any emails that are inappropriate or show detrimental treatment.
  4. Communicate your concerns and needs to your employer including in relation to any absences because of pregnancy related illness and to attend ante natal appointments.
  5. If you experience negative treatment and believe it is because of pregnancy, consider whether you should raise a formal complaint through your employer’s grievance procedure.
  6. Collate all your employment documents (employment contract, maternity policy, MATB1 certificate, grievance procedure, bonus schemes, share option scheme rules, details of any benefits such as car allowance and details of any bonus or share options you are entitled to.
  7. Consider requesting your personal data from your employer by making a data subject access request. Whilst you are only entitled to your own personal data (and not that of anyone else), a request may reveal internal communications that show the motive for any adverse treatment or dismissal.
  8. Consider the length of time it is likely to take you, based on the job market and the time you intend to take time out to care for your baby, to find a comparable job in terms of status and pay. This will help assess your potential losses because of the detrimental treatment
  9. Seek early legal advice.

If you have any questions in relation to pregnancy discrimination, please contact Partner Merrill April, who specialises in employment and partnership law issues for senior executives, multinational employers, firms and partners.