Pregnancy discrimination

Employees are protected against pregnancy and maternity discrimination from the moment their pregnancy starts.

If an employee is treated unfavourably because of their pregnancy, this could be a case of discrimination (even if other workers are treated the same way).

If you, as the employer, fail to provide well-written grounds for dismissing your employee, they can complain to an employment tribunal.

In this guide, we’ll go through what pregnancy discrimination is, UK law on pregnancy, and how to protect your employees against it.

What is pregnancy discrimination?

Pregnancy discrimination at work is when the employer treats an expectant employee differently because of their pregnancy.

They might show unfavourable treatment in relation to an employee's pregnancy because of:

• The pregnancy itself.
• Illnesses suffered as a result of pregnancy.

Numerous factors may contribute to pregnancy discrimination. For instance, not having enough funding to sustain temporary workers, or paying another staff extra to cover their jobs while they are on parental leave.

Who is protected from pregnancy discrimination?

There are many people who are legally protected from pregnancy discrimination in the workplace. And this extends from the first day of employment, regardless of their length of service.

They include:

• Contracted employees.
• Casual workers.
• Agency workers.
• Freelancers.
• Contractors.

Why would employees raise pregnancy discrimination claims?

An employee might raise a discrimination claim based on pregnancies for many reasons. For example:

• Facing unfair dismissal.
• Not being offered promotional opportunities.
• Changing their work contractual terms without consent.
• Forcing them to work during maternity leave.
• Asking them to stop breastfeeding during work hours.

If you dismiss someone when they are pregnant or on maternity leave, you must provide them with written reasons.

If you are making an employee redundant whilst they are on pregnancy or maternity leave, you must assure that the redundancy procedure is fair. You should also offer them suitable alternative work on similar terms and conditions.

It is always preferable to resolve things amicably. Formal processes such as dealing with early conciliation or employment tribunal claims can damage your relationship with them.

UK law on discrimination against pregnancy

In the U.K., the Equality Act 2010 protects people from discrimination relating to pregnancy and maternity. Legal protection begins at the start of a person’s pregnancy, right through to when they return to work.

Many employers have an attendance policy that states employees may face warnings, disciplinary measures, or termination if they miss too many workdays. But here, you cannot include pregnancy-related illness with general absences.

An employer also cannot reduce an employee’s pay or ask them to make up missed work because of a pregnancy-related leave. For example, if an employee misses work because they have to attend a prenatal medical appointment, you cannot hold this against them.

Pregnant employees are subject to time off with full pay for antenatal appointments. This means the employer should give them paid time off for antenatal care and pay their normal rate for this period.

Employers should also think about the health & safety of pregnant employees. They must have a written policy on pregnancy and maternity procedures available in the workplace.

These rules must be followed by all employees. And supervisors must be given proper training on how to manage pregnancy and maternity leave without discrimination.

Your company policy and training should take into consideration health & safety risks. These can include risks like safe working standards or breastfeeding mothers.

You may also provide reasonable work changes, like adjusting hours, conditions, and environments. But make these changes through proper risk assessments.

Employers must provide a suitable place for pregnant employees to rest. Every person will have specific requirements due to their medical history and status. So, understand what individual needs during their pregnancy at work.

You must also avoid pressuring employees to return to work during maternity leave or sooner than they wanted.

Maternity discrimination

Maternity discrimination is when an employee faces unfavourable treatment because they’ve considered or taken leave after birthing.

There are three types of maternity leave. These include:

• Compulsory maternity leave: This is leave immediately taken two weeks starting after giving birth. This is extended to four weeks for workers in factory settings. All employees are eligible for this leave.
• Ordinary maternity leave: This is leave taken in the first 26 weeks of birth, and it includes the compulsory maternity leave period.
• Additional maternity leave: This leave is any additional time taken after the first 26 weeks of leave.

You cannot discriminate against an employee because they have

• Taken compulsory maternity leave.
• Taken ordinary leave.
• Taken additional maternity leave.

Maternity discrimination is different to pregnancy discrimination. The difference is pregnancy is when someone is expecting a baby. Maternity is associated with the time following the birth of a baby.

This whole timeframe is known as the protected period. The protected period is the time from the start of pregnancy to the end of maternity leave (or when an employee returns to work).

Does pregnancy discrimination come in different forms?

Under UK law, employees are protected against all forms of discrimination relating to pregnancies. This is because pregnancy and maternity count as protected characteristics under the Equality Act 2010.

The same act outlines four forms of discrimination, and each can relate to pregnancy.

Direct discrimination

Direct discrimination occurs when the employer treats someone worse than another person in a similar situation because of their pregnancy or maternity. For example:

• A pregnant employee applies for a promotion at work. Their employer decides not to consider them despite them being the most suitable candidate for the job. The employer doesn’t want to deal with juggling work through their maternity leave.
• An employee is off sick due to their pregnancy. Because of this, their employee has given them fewer shifts compared to others.

Indirect discrimination

Indirect discrimination occurs when a practice, regulation, or guideline applies to everyone in the same manner but has a greater impact on certain groups.

When you oppose someone who is pregnant, breastfeeding, or on maternity leave, you are working against them. This can be done subtly and indirectly, but it can end up being harmful to them.

Victimisation

Victimisation occurs when the employer treats their staff badly because they have made a complaint about pregnancy or maternity-related discrimination.

It can also occur if they are supporting someone who has made a complaint about ill-treatment based on pregnancies or maternity.

Harassment

Harassment is when an employee suffers from unwanted behaviour due to their pregnancy. It can also cause an offensive, intimidating, or hostile environment for them.

Paying employees during their pregnancy

If an employee works during their pregnancy, they should receive what they generally would. But during their maternity leave, their payment changes.

Maternity pay

Employees are eligible for maternity pay if they're having a baby or have already given birth. They can receive one of the following payments:

• Statutory maternity pay.
• Contractual maternity pay.
• Maternity allowance.

Statutory maternity pay

Statutory maternity pay is a payment given to a majority of pregnant employees. As the employer, you must pay this amount to them if:

1. They give you the correct notice and prove that they’re pregnant.
2. They’ve worked for you for at least 26 weeks, up to the 15th week before their baby is due
3. Their average pay before tax is at least £123 a week.

The payment is calculated based on an average of eight weeks’ earnings and roughly ends 15 weeks before the time of the birth. If this isn’t worked out correctly, the employee could claim discrimination.

Contractual maternity pay

Contractual maternity pay is an amount given which is usually above the legal minimum amount of pay.

Some employers give their employees this option as a benefit of working for them.

In this case, what your employees get depends on you. You should ensure not to pay them less than statutory maternity pay.

How to protect employees from pregnancy discrimination

There are several practical ways to protect your employees from discrimination against pregnancy. Here are a few examples:

Create a pregnancy policy

You can consult with experts to develop a pregnancy policy for your company. You need to ensure everyone is treated fairly in accordance with the policy. That way, you will be able to provide a safe and health workplace for your employees, especially those who are expecting.

Provide health and wellbeing pregnancy services

Bringing in health and wellness pregnancy professionals is an excellent method to incorporate. They can visit pregnant employees on a weekly basis. This will help them keep on a healthy course to birthing and aftercare.

Introduce pregnancy training to managers

Direct line managers have regular interactions with the employees. So, intraduct pregnancy training to them. They’ll learn how to care for pregnant employees during everyday work, as well as avoid bias or discriminating conduct.

Implement practices for breastfeeding employees

You can implement practices which relate to any employee who is breastfeeding. This includes directly feeding babies or pumping to store milk. You can provide a designated room which provides closure and comfort whilst breastfeeding. It’s also advisable to provide additional breaks in order to feed or pump.

Get expert advice on pregnancy discrimination with Peninsula

As an employer, you must provide additional care and protection to expectant employees. Be empathetic during this time, as they will experience a wide range of issues; from pregnancy-related sickness to after-birth care.

Peninsula can offer expert advice on pregnancy discrimination. We can walk you through how to avoid it, whilst creating a comfortable and caring workplace for pregnant employees. We also offer bespoke maternity discrimination advice, too.

Our HR professionals offer 24/7 HR advice 365 days a year, with fully trained counsellors ready to help. Contact us on 0800 029 4389