In our fourth article in the series focusing on the risk of discrimination in the workplace, we consider the protected characteristic of pregnancy and maternity, the common issues that arise and what employers should do to avoid claims of discrimination.

Despite the Equality Act 2010 (EqA) making it unlawful to discriminate against women because of pregnancy or maternity leave, women continue to face significant challenges in the workplace when they become parents. These challenges can include bias in hiring and promotion decisions, lack of access to flexible working arrangements and negative stereotypes about working mothers. According to research conducted by Pregnant Then Screwed and Women In Data last year, 52 per cent of mothers have faced some form of discrimination at work, with one in five leaving their job following a negative or discriminatory experience.

What is pregnancy and maternity discrimination?

Pregnancy and maternity discrimination takes place when, during or after the protected period, an employer treats a woman unfavourably because:

• of her pregnancy; or
• of an illness suffered by her during the protected period as a result of her pregnancy.

It is also pregnancy and maternity discrimination for an employer to treat a woman unfavourably because:

• she is on compulsory maternity leave or equivalent compulsory leave; or
• she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or equivalent maternity leave.

The ‘protected period’, in relation to a woman’s pregnancy, starts when the pregnancy begins, and it ends:

• if she has the right to ordinary and additional maternity leave, either at the end of additional maternity leave or (if earlier) when she returns to work;
• if she has a right to equivalent maternity leave, at the end of that leave period or (if earlier) when she returns to work after the pregnancy;
• if she does not have either of those rights, at the end of the period of two weeks beginning with the end of the pregnancy.

Employees are protected from pregnancy discrimination as soon as an employer knows, believes or suspects that they are pregnant.

What the research says

Gender bias expert Dr. Jo Kandola, from D&I consultancy Pearn Kandola, explains research has consistently shown that gender bias is present within organisations and stereotypes held about women can quickly impact how a woman is seen and treated at work. However, there are certain times within a woman’s career when she is more likely to experience bias. Psychologists have described this as the “3 M’s in a working women’s life” which describes the 3 periods when women will face more discrimination - menstruation, maternity and motherhood.

During pregnancy and maternity, women get associated with terms such as “baby brain” where the assumption is that they have poorer memory, concentration and cognitive abilities. In reality, the research behind “baby brain” is inconclusive and each woman will have a unique experience whilst pregnant. However, these subtle beliefs about women’s abilities remain present and reinforce the stereotypes that pregnant women aren’t suited in the workplace. This has been demonstrated by a piece of research that found the beliefs people hold about pregnant women are that they are incompetent and uncommitted (Skorinko et al., 2020). Its these beliefs and stereotypes that help explain why it’s been estimated that 3 in 4 mothers experienced negative or discriminatory treatment during maternity (Equality and human rights commission, 2016).

Common Issues Faced by Employers

Recruitment

When recruiting new employees, it is unlawful to refuse to shortlist, consider or employ someone because they are pregnant or planning to start a family.

While employers are not strictly prohibited from inquiring about pregnancy, family intentions, or childcare arrangements, it is crucial to tread carefully. If an employer asks such questions and the candidate is subsequently unsuccessful, an employment tribunal might infer that the candidate’s failure was due to one of these reasons, supporting a discrimination claim. Therefore, employers should avoid engaging in discussions related to these topics. Even if a pregnant job applicant volunteers’ information about her pregnancy or maternity, or appears to be pregnant, interviewers and recruitment decision-makers should not be influenced by that information or impression. It is essential to focus instead on the candidate’s qualifications and suitability for the role without any bias related to family or pregnancy status.

Promotion

Employers must also not discriminate against employees due to pregnancy or maternity leave when considering promotional opportunities. Examples of discriminatory treatment include refusing to consider pregnant employees for promotions, withholding information about promotion opportunities, or discouraging them from applying.

Antenatal Appointments

Pregnant employees are entitled to reasonable time off with full pay for antenatal appointments or care before they have their baby. Antenatal care is not only limited to medical visits but can also include antenatal or parenting classes where these have been recommended by a doctor or midwife.

While employers cannot reasonably refuse a request from an employee to take time off for antenatal care, they are entitled to request evidence and refuse time off for appointments if this information is not provided (apart from the first appointment). Employers can also request employees to attend work before and/or after their appointments if this is within their normal working hours. Employees do not have to make up for any time missed and must not be asked to use their annual leave for an appointment. Part-time employees are still legally entitled to paid time off for antenatal care and should not be asked to arrange their appointments outside of their normal working hours.

Employees must not be dismissed or treated unfavourably when they request or take time off for antenatal care that they are entitled to. For example, any antenatal leave they are eligible for should not be factored into disciplinary actions or employee redundancy decisions.

Poor performance during pregnancy

Employers should not take any action under their disciplinary or capability procedures against a pregnant employee where the reason for her poor performance is due to her pregnancy, for example, absences due to pregnancy-related illness. However, if these issues arose before her pregnancy or if the reason for her poor performance is unrelated to her pregnancy, employers may address this in accordance with their standard process.

Redundancy

Employers must ensure that their redundancy selection criteria do not discriminate against employees who are pregnant or have been on maternity leave. For example, when assessing an employee’s attendance, absences related to pregnancy and maternity should not be factored into the scoring process.

Since 6 April 2024, employees who are within the protected period of their pregnancy have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This gives employees priority access to redeployment opportunities over other redundant employees. This priority status also extends to those who have recently returned from maternity leave by providing an additional protected period. The additional protected period begins 18 months after the first day of the expected week of childbirth or, where the employee has notified the employer of the actual date of birth, 18 months after this date.

If an employer fails to provide a priority employee with an appropriate alternative job, it could result in an automatic unfair dismissal claim. Such a claim would entitle the employee to a compensatory award that is not subject to any cap and does not necessitate two years of qualifying service. Additionally, in certain situations, the employee may also have grounds for a discrimination claim.

Preventing pregnancy and maternity discrimination

• Understand legal obligations - employers should familiarise themselves with and regularly review the legal framework regarding their obligations towards pregnant employees and those on maternity leave.
• Regularly review and refresh policies and procedures to ensure that they align with those legal obligations.
• Develop a procedure for investigating and responding to pregnancy discrimination complaints.
• Support pregnant employees and those on maternity leave by informing them of their rights, following internal policies and procedures and engaging in an open dialogue.
• Educate and train employees to ensure that they are well-informed about company policies and legal obligations.
• Promote a culture of equality and inclusion within the organisation.