New research commissioned by The Equality and Human Rights Commission has revealed that pregnancy and maternity discrimination continues to play a significant role in employment relationships across the UK. Of the 3,254 mothers interviewed as part of the research, 77% reported experiencing potentially discriminatory or negative treatment, whilst 50% felt that their pregnancy had had a negative impact on their career, work status or job security.
Perhaps more telling are those figures relating to employers. Of the 3,034 workplaces interviewed, a staggering 67% of employers had failed to seek information or guidance on employment issues relating to pregnancy and maternity, whilst close to 55% had no guidelines, training or support for managers on managing pregnancy and maternity.
The Equality Act 2010 (the Act) prohibits an employer from treating an employee unfavourably from the beginning of her pregnancy until the end of her maternity leave. The unfavourable treatment must be because of her pregnancy or any illness suffered as a result of that pregnancy. The Act also prohibits an employee being treated unfavourably because she is either on compulsory maternity leave (during the first 2 weeks after birth) or is exercising or seeking to exercise her right to maternity leave. Unfavourable treatment could also result in a claim for direct discrimination or alternatively a claim for indirect discrimination or harassment on grounds of sex.
It is important that employers are aware that the protection afforded by the Act extends beyond the usual definition of “employees” to job applicants, partners, workers and some self-employed contractors. In particular employers should be mindful of the fact that an employee who is not eligible to receive statutory maternity pay may nevertheless be entitled to protection from discrimination.
The financial and reputational risks associated with a pregnancy discrimination claim are substantial. If a claim succeeds, the employment tribunal will generally make an award of damages to compensate the claimant for the loss they have suffered (including an award for injury to feelings). There is no upper limit to an award for discrimination.
In light of the apparent increase in pregnancy and maternity discrimination in the workplace it is more important than ever that employers take steps to prevent this kind of behaviour from occurring.
Employers will generally be aware of the more obvious risks of discrimination, such as denying an employee a promotion opportunity because of their pregnancy. However, they also need to be aware of the less obvious risks such as taking periods of pregnancy-related sickness absence into account when making a decision about an employee’s employment.
As a starting point, employers should ensure that they have a comprehensive written equal opportunities policy in place setting out exactly what is expected of employees and making it clear that discriminatory behaviour will not be tolerated. Employers will also need to ensure that they take steps to implement the policy, provide appropriate training and respond appropriately to any breaches in practice.