Discrimination: Pregnancy and Maternity

Caragh Bailey
16/11/2020
40
5 min read
Discrimination: Pregnancy. Advice from employment law friend

(TW: Complications in childbirth)
Pregnancy and maternity discrimination is wrong, but sadly happens often. Below are some examples of pregnancy discrimination at work as well as some of your statutory rights.

  • To learn more about what behaviours constitute the different types of discrimination, read our main page on discrimination.
  • If you'd like to read more about your rights and responsibilities as a pregnant person at work, read our segment on employee rights.

  • How do I deal with pregnancy discrimination at work?

  • If you'd like to jump ahead to actionable steps to tackle Pregnancy and maternity discrimination at work, read our article Discrimination at work: What should you do?

Breastfeeding is also protected under pregnancy and maternity discrimination

What type of discrimination is pregnancy?

Pregnancy discrimination can be direct discrimination or harassment. Victimisation because you reported pregnancy and maternity discrimination is also classed as discrimination. Read our main article on discrimination for a full explanation on these four types of discrimination.

Pregnancy and maternity discrimination by association, or by perception is complex. Click here to read ACAS’ guide.

Direct discrimination: Pregnancy & Maternity

You’re protected from direct discrimination in the workplace during your pregnancy.
For example:
  • Your employer reduces your hours or responsibilities against your wishes because you are pregnant (beyond any necessary changes as a result of a risk assessment).
  • Your employer applies pressure on you to resign, suggesting that you would be a better parent to your child if you left work.
  • Your employer fails to carry out a risk assessment regarding your pregnancy, or does, but fails to take proper action to protect the health and safety of yourself and your baby.

You’re protected from direct discrimination in the workplace during maternity leave. (If you are not entitled to maternity leave you are still protected for two weeks after childbirth, including stillbirth). Including discriminatory decisions made during your maternity leave, even if you don’t find out until after.
For example:
  • Your employer decided to make you redundant because of your maternity, but didn’t tell you until the end of your leave.
  • Your employer failed to make you aware of career opportunities that you were eligible to apply for while you are away on maternity leave. As a result, you missed out on training or promotion.
  • Your employer changed your contract while you were away, reducing your hours and/or pay.

Indirect discrimination: Pregnancy & Maternity

Most cases of indirect discrimination against pregnancy and maternity would fall under sex discrimination. All unfavourable treatment relating to your pregnancy, maternity or breastfeeding beyond 26 weeks from the day you gave birth would be sex discrimination rather than pregnancy and maternity discrimination.
For example:
  • All employees have to work set hours, this indirectly disadvantages anyone who needs to work flexibly due to breastfeeding or returning from maternity leave.

Harassment Discrimination: Pregnancy & Maternity

Pregnancy harassment in the workplace is usually verbal harassment relating to your pregnancy or childbirth that creates a hostile environment.

Pregnancy harassment examples:

  • Your colleagues make jokes about changes to your body that you find distressing.
  • Your boss asks questions about your plans for childbirth which make you feel uncomfortable.
  • Your supervisor publicly reprimands you for performance issues arising from your pregnancy, you find this intimidating.

You don’t have to prove that you were treated worse than someone else, just that you were treated unfavourably.

If your employer makes you:
  • Do heavy lifting
  • Work night shifts
  • Travel too much
  • Work in high temperatures
  • And you are worried about your health and safety, or the health and safety of your child, you can report it to the health and safety executive.

If they have not done a risk assessment for your pregnancy, you may be able to take action for pregnancy discrimination at work.

If you are being discriminated against because you are a mother, read our article on gender inequality in the workplace.

Frequently Asked Questions
If you have been employed since the beginning of the bonus year, but were on maternity leave for some of it, your employer has to pay you a bonus. However, they only have to pay you a bonus based on the time you were at work, including two weeks compulsory maternity leave, but not any statutory maternity leave beyond two weeks.
For a discretionary bonus, they should do this too. Not doing so may be considered to be unfair or 'in bad faith', meaning you could make a claim to the employment tribunal

Discrimination: Pregnancy. Have you been subject to unfair treatment?
Not all employers give the correct holiday entitlement so if you feel that yours has been mis-calculated, whether on purpose or not, you can get in contact with us and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
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