What is and isn’t pregnancy and maternity discrimination
Many organisations can face challenging times where employee reductions are inevitable, once all other options are exhausted. When it affects those on maternity leave, things can get complicated. We advise how to manage this effectively and sensitively, and how to avoid any potential discrimination claims.
The introduction of the Equality Act 2010 meant that pregnancy and maternity became a protected characteristic – rather than having to raise claims under “sex discrimination”, which happened prior to 2010.
This means that any woman who is treated differently or unfairly during the period of her pregnancy, maternity leave, recently after giving birth or while breastfeeding could make a claim for discrimination.
There’s no qualifying employment period required for pregnancy or maternity discrimination claims, and there are no limits on the amount of compensation that may be ordered. So as an employer, it’s vital you know the legal rights and responsibilities regarding pregnancy and maternity, or you could face a costly claim.
An employees’ rights
Of course, we all know an employee has the right to receive statutory maternity leave and pay. (And if you don’t, give this webinar a watch.) But here are the other rights you need to remember:
- Protection from unfair treatment, unfair dismissal and discrimination because of pregnancy, childbirth and maternity leave.
- Protection for themselves and their baby, including taking a reasonable amount of paid time off for antenatal care.
- The right to return to the same job on the same terms and conditions, if returning to work after the period of ordinary maternity leave.
- Those who choose to take additional maternity leave have the right to return to the same or other suitable job with the same or better terms and conditions.
- Making a request for flexible working.
- If made redundant, they have the right to be offered a suitable alternative vacancy.
Examples of common pregnancy and maternity discrimination
Discrimination against pregnancy or maternity leave has serious legal repercussions, and there are always cases appearing in the news that show just how significant this can be. Make sure your company doesn’t fall foul to poor HR practices.
Common discriminatory practices include:
- Cutting working hours and/or pay
- Selection for redundancy due to being on maternity leave
- Failing to consult with the employee regarding changes or redundancy during maternity leave
- Putting employees onto zero-hour contracts
- Denying training or promotion opportunities
- Not considering the employee for pay rises
- Pressuring the employee to return to work early from maternity leave
- Not paying maternity pay
- Dismissal because of pregnancy
- Pressuring to resign
- Demotion on return to work
- Not carrying out risk assessments when there are health and safety risks
- Changes in the attitudes of colleagues and management leading to verbal harassment
What isn’t discrimination
When it comes to your employees who are pregnant or taking maternity leave, here’s what doesn’t count as discrimination.
Redundancy
Despite what you may think, you can make someone on maternity leave redundant.
Of course, they can’t be selected because of any reason to do with them being on maternity leave. And you must ensure all normal procedures are followed, including the usual consultancy period. Likewise, any facts and figures used to aid the selection process shouldn’t disadvantage the person on maternity leave, and so you might have to use data from a previous time period (prior to the employee taking leave) to make your selection.
Favourable treatment
If a role is being made redundant, you should not treat the employee who is pregnant or on maternity leave favourably over their colleagues.
However, if a person on maternity leave is selected for redundancy, an employer is obliged to find a similar role elsewhere in the organisation, if possible. If there are suitable vacancies available, they must be placed in this role without the need for competitive interview, ahead of other colleagues.
Note if an employer makes a half-hearted attempt to find an alternative role and can’t offer a suitable one, this can be grounds for a claim – so take it seriously!
Bonuses
You don’t have to award employees with bonuses whilst on maternity leave (if they haven’t done any work towards it).
Bonuses are rewarded based on the work done by an employee – usually towards an objective. So, if your employee has undertaken all of the work needed to get their bonus before going on maternity leave, they should be paid in full, no matter when their pay date falls. If they’ve done just some of the work but then went on leave, their bonus should be pro-rated for the amount they worked. And if they’ve not done any work to contribute towards the objective, you are not obliged to give them a bonus.
In conclusion
A responsible employer should treat all staff fairly, consistently and without discrimination.
It’s the employer’s responsibility to ensure all managers are aware of the legislation regarding pregnancy and maternity. If they don’t, these discriminatory cost-cutting measures could have major long-term reputational and financial impact.
