Pregnancy and Maternity Discrimination: What should employers be aware of?

Pregnancy and Maternity Discrimination- What should employers be aware of?

Pregnancy and maternity discrimination impacts many women’s lives but as most potential claims in this area settle, the extent of the problem is not matched by the Tribunal statistics. A survey carried out by the Equality and Human Rights Commission (ECHR) in June 2017 found:

• 77% of mothers surveyed said that they had had a negative and possibly discriminatory experience during pregnancy, maternity leave or after their return from maternity leave.
• 70% of employers surveyed thought that women should declare whether they are pregnant during recruitment
• 25% of employers surveyed thought that is was reasonable to ask women at the interview stage whether they intended to have children or more children

The Covid-19 pandemic appeared to only exacerbate the problems experienced by pregnant women and new mothers. In its report, ‘Pregnant and precarious: new and expectant mums’ experiences of work during Covid-19’, the TUC stated that 25% of pregnant women and new mothers had been treaded unfairly during the heights of the pandemic. The survey canvassed views from more than 3,400 women and reports of unfavourable treatment including unfairly selecting pregnant employees for redundancy or furlough and telling pregnant employees to take sick leave, even when they were not ill, were made.

Whilst it is ultimately hard to deny that acts of unfair treatment do occur, we like to believe that this is not always intentional or malicious. The legislative framework governing pregnancy and maternity discrimination is complex and differs from that which applies to the eight other protected characteristics and operationally, pregnancy and maternity discrimination is also more closely linked to practices such as flexible working requests. This particular area of practice can therefore sometimes present businesses with additional complexities which are not always managed appropriately.

In terms of then of some basic legal principles which if understood could help to lower the risk of discriminatory acts occurring, we would suggest employers consider the following:

• The Equality Act 2010 protects a woman from being subject to unfavourable treatment for certain reasons relating to her pregnancy or maternity leave. A woman can only allege pregnancy and maternity discrimination if she can complain of unfavorable treatment. What is (or is not) unfavourable, will depend on the facts of each individual case.
• In deciding whether a woman has been discriminated on this basis, the test is whether the woman was treated unfavourably, rather than less favourably and so there is no need for a comparator (as there is with other forms of discrimination).
• Pregnancy and maternity do not have to be the only reasons for the unfavourable treatment. Accordingly, a woman’s pregnancy or maternity leave only needs to materially influence the employer’s conscious or sub-conscious decision making for the unfavourable treatment to be discriminatory. (Imagine an employer dismissing an employee on maternity leave because her cover worker performs better. Here, had the employee not have been on maternity leave she would not have been dismissed. This dismissal is therefore discriminatory even though performance was the employer’s key determining factor).
• In order to discriminate the employer must have had knowledge of the employee’s pregnancy. A ‘belief’ in the fact of pregnancy can also trigger liability.

These four points help to form the basis of all pregnancy and maternity discrimination cases and having a primary awareness of these fundamental tenants (which should then ideally be built upon for the purposes of creating an internal policy document), should ultimately help to reduce the prominence of unlawful conduct in practice.

When it comes to some common risk areas, employers should have extra regard to their operational practices in respect of the following:

• Recruitment- A job applicant does not have to tell a prospective employer that she is pregnant during recruitment and it is unlawful to withdraw a job offer on learning of a woman’s pregnancy, or dismiss her for non-disclosure at interview.
• Promotion- An employer must not discriminate against an employee because she is pregnant or on maternity leave with regard to promotional opportunities. It would be unlawful not to promote an employee who is the best person for the job because they are pregnant or on maternity leave.
• Antenatal appointments- Pregnant employees are entitled to paid time off to attend antenatal appointments and a refusal to allow this will result in unlawful treatment.
• Poor performance during pregnancy- An employer should not take any action under its disciplinary or capability procedures against a pregnant employee where the reason for the poor performance is due to her pregnancy.
• Redundancy- Redundancy criteria should not discriminate against employees who are, or have been pregnant or on maternity leave. Potentially redundant employees on maternity leave are entitled to be offered any suitable alternative vacancies in priority to other potentially redundant employees.

If you would like to understand more about pregnancy and maternity discrimination, your obligations as an employer or, how you can take steps to protect your business from discrimination claims in this regard please contact a member of the Employment Team on 01274 864999.