Discrimination during and after maternity leave
Although it should be a cause for celebration, women often face considerable difficulties in the workplace as a result of their pregnancy. According to a report published by the Equality and Human Rights Commission in 2015, over the past decade, the number of expectant and new mothers forced to leave their job because of concerns about the safety of their child or pregnancy discrimination has doubled to 54,000. Whilst UK equality legislation has attempted to combat these issues, the reality is that companies often do not follow the rules, leaving pregnant women vulnerable to acts of discrimination.
What is pregnancy and maternity discrimination?
The Equality Act 2010 (“the Act”) provides protection for individuals who have certain “protected characteristics” and one of these categories is pregnancy and maternity. Although the right to statutory maternity leave only applies to employees, other individuals (for example, agency workers) also have the right not to suffer discrimination because of pregnancy or maternity.
Pregnancy and maternity discrimination occurs when a woman is treated unfavourably at any point from the beginning of her pregnancy to the end of her maternity leave (known as the “protected period”) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy. It also occurs when a woman is treated unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise the right to ordinary or additional maternity leave. There is no need for a comparator to demonstrate that a woman has been treated unfavourably.
What are my main rights during maternity leave?
Continuity of contractual rights.
During maternity leave, your contract of employment remains intact and you should be entitled to the same benefits that you would have received had you not been on maternity leave, except for remuneration because you would not be receiving your normal salary during maternity leave. Any attempt to contravene this could constitute maternity discrimination.
Rights in relation to redundancy and dismissal
If you are made redundant during maternity leave, you are entitled to redundancy pay in the same way that you would be had you not been on maternity leave. You may also have a number of other potential claims including automatic unfair dismissal, ordinary unfair dismissal or pregnancy and maternity discrimination.
You may have a potential claim for pregnancy and maternity discrimination if:
- there is no genuine redundancy situation;
- there is a genuine redundancy, but the fact that you have given birth or are on maternity leave has contributed to your selection for redundancy; or
- you have not been consulted or adequately consulted because you are on maternity leave.
You would be entitled to be offered a suitable alternative vacancy if indeed there is a vacancy; if your employer fails to comply with this requirement, you will have a claim for automatically unfair dismissal.
What are my main rights on return to work?
Your employer will be exposed to claims of pregnancy and maternity discrimination if you are not permitted to return to the same job on no less favourable terms and conditions as before, or if they fail to offer you a suitable alternative role which is available. You may also have automatic unfair dismissal claims (if there is a dismissal) and/or unlawful detriment (if there is no dismissal).
It may be the case that you need to rearrange your working hours in order to maximise time with your child. You have the right to make a flexible working request, provided that you meet the eligibility criteria. Whilst employers are not obliged to allow the requests, they have a duty to deal with requests in a reasonable manner.
In the recent 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.
Am I being discriminated against? If so, what should I do?
At first, signs of pregnancy and maternity discrimination may be subtle and you may find it difficult to recognise them. It could stem from a few casual remarks by your line manager referring to your pregnancy, it could be a demotion, refusal of training opportunities or losing out on certain benefits that you would usually be entitled to.
It is worth remembering that you are protected by equality legislation throughout the protected period and should therefore consider your options if you feel that you are being discriminated against in the workplace. However, when considering whether or not to initiate tribunal proceedings, it is important to note the cost of bringing a claim, the significant time and effort required (particularly when dealing with the added responsibilities of being a new mother) and the potentially detrimental impact on your career if you work in a small industry. If you are unsure about your rights and next steps, it is always a good idea to seek legal advice at any stage of your pregnancy.