Pregnancy and maternity discrimination update

Charlie Thompson rounds up recent legal developments, including automatic unfair dismissal of employees undergoing IVF

Automatic unfair dismissal and IVF

The employment tribunal unanimously ruled in Karavadra v BJ Cheese Packaging Ltd that the claimant had been automatically unfairly dismissed because of her pregnancy. Legally this was a relatively straightforward case in that the tribunal had little difficulty in establishing the reason for the claimant’s dismissal, but it had the interesting feature of involving a claimant undergoing IVF.

Protection against discrimination applies during the ‘protected period’, which starts once the pregnancy begins. However, in order to discriminate against a woman because of pregnancy, the alleged perpetrator must have knowledge of the pregnancy.

In many situations, determining when the employer had knowledge is factually straightforward, as the employee will notify the employer of her pregnancy. In this case, the employee was undergoing IVF and had told her employer of this fact (and indeed had requested extended annual leave to take place after egg collection and transfer). 

In cases such as these, employers will typically be on notice of an employee’s intention to become pregnant but may not know precisely whether or not she is pregnant. This case is a useful reminder that prudent employers may wish to treat the protected period as having started at an early stage, rather than waiting for the employee to confirm that they are pregnant. 

Sex discrimination based on maternity pay

The Employment Appeal Tribunal (EAT) has ruled in The Commissioner of the City of London Police v Geldart that where a claim for direct discrimination is made in relation to maternity pay, there is no requirement to establish a comparator.

In this factually unusual case, the claimant was not able to bring a pregnancy and maternity discrimination claim because, as a police officer, she was not entitled to statutory maternity pay. Instead the claimant brought a direct sex discrimination claim. 

The Equality Act 2010 makes clear that direct discrimination claims require a comparator. However, the EAT was satisfied that, in this case, a comparator was not required because it was clear that the employer had treated the employee accordingly because she had been on maternity leave. Given that men cannot take maternity leave, there was no need for the claimant to show a comparator.

Extended protection from redundancy

While an employer should consider suitable alternative vacancies in respect of all potentially redundant employees, women who are pregnant or on maternity leave have enhanced protection, and effectively ‘jump the queue’ by having the right of first refusal on any such vacancies.

Currently, the period of this enhanced protection starts on the date the employee notifies her employer of her pregnancy and ends when she returns from maternity leave. The Department for Business, Energy and Industrial Strategy has proposed extending this protection so that it applies for a further six months after the employee’s return. 

The government has previously stated that it intended to bring forward legislation ‘when parliamentary time allows’. This was readdressed in the last Queen’s Speech, when the government announced that a new employment bill would be brought forward. We can expect to see this bill coming out later this year. 

Flexible working boost

According to ONS figures, 62 per cent of parents reported being able to vary their working day to look after children. Flexible working is increasingly commonplace for mothers returning from maternity leave, and this trend may accelerate with the new employment bill expected to propose that flexible working be made the default. Currently, flexible working must be requested, and the employer has several potential reasons for turning down a request. New legislation may make it more difficult for employers to reject flexible working without attracting potential discrimination claims. 

Charlie Thompson is a senior associate at Harbottle & Lewis