Pregnancy and maternity discrimination impacts many women’s lives. However, as the majority of potential claims in this area settle, the true extent of the problem is not matched by the tribunal statistics.
A survey carried out by the Equality and Human Rights Commission (EHRC) in June 2017 found 77 per cent of mothers said they had been subject to a negative and possibly discriminatory experience during pregnancy, maternity leave, or after their return from maternity leave.
In addition, 70 per cent of employers surveyed thought that women should declare whether they are pregnant during recruitment, with 25 per cent of employers stating they felt it reasonable to ask women at the interview stage whether they intended to have children, or more children.
A complex legislative framework
The pandemic appears to have only exacerbated the problems experienced by pregnant women and new mothers. In its report, Pregnant and precarious: new and expectant mums’ experiences of work during Covid-19, the TUC stated that 25 per cent of pregnant women and new mothers had been treated unfairly during the heights of the pandemic. The survey canvassed views from more than 3,400 women, with reports of unfavourable treatment including unfairly selecting pregnant employees for redundancy or furlough and telling pregnant employees to take sick leave – even when they were not ill.
While it’s hard to deny these acts of unfair treatment do occur, we have to ask whether, for the most part, they are actually carried out intentionally or maliciously. This is because the legislative framework governing pregnancy and maternity discrimination is complex. It differs from that which applies to the eight other protected characteristics and operationally, pregnancy and maternity discrimination is also more closely linked to practices such as flexible working requests. This area of practice can therefore sometimes present businesses with additional complexities, which are not always managed appropriately.
How can the risk of discrimination occurring be reduced?
To help reduce the risk of discriminatory acts relating to pregnancy and maternity occurring, it helps to look at some of the following basic legal principles:
The Equality Act 2010 protects a woman from being subject to unfavourable treatment for certain reasons relating to her pregnancy or maternity leave. A woman can only allege pregnancy and maternity discrimination if she can complain of unfavorable treatment. What is (or is not) unfavourable, will depend on the facts of each individual case.
In deciding whether a woman has been discriminated against on this basis, the test is whether the woman was treated unfavourably, rather than less favourably and so there is no need for a comparator (as there is with other forms of discrimination).
Pregnancy and maternity do not have to be the only reasons for the unfavourable treatment. Accordingly, a woman’s pregnancy or maternity leave only needs to materially influence the employer’s conscious or sub-conscious decision making for the unfavourable treatment to be discriminatory. (Imagine an employer dismissing an employee on maternity leave because her maternity cover performs better. Here, if the employee was not on maternity leave, she would not have been dismissed. This dismissal is therefore discriminatory, even though performance was the employer’s key determining factor).
To discriminate, the employer must have had knowledge of the employee’s pregnancy. A ‘belief’ in the fact of pregnancy can also trigger liability.
These points all help form the basis of all pregnancy and maternity discrimination cases. Having a primary awareness of these fundamental tenants (which should then ideally be built upon for the purposes of creating an internal policy document), should ultimately help to reduce the prominence of unlawful conduct in practice.
Common operational risk areas to think about
There are also some common risk areas where employers should take extra caution to their operational and business practices to help reduce instances of pregnancy and maternity discrimination:
Recruitment: a job applicant does not have to tell a prospective employer that she is pregnant during recruitment, and it is unlawful to withdraw a job offer on learning of a woman’s pregnancy or dismiss her for non-disclosure at interview.
Promotion: employers must not discriminate against an employee because she is pregnant or on maternity leave when it comes to opportunities for promotion. It is unlawful not to promote an employee who is the best person for the job because they are pregnant or on maternity leave.
Antenatal appointments: pregnant employees are entitled to paid time off to attend antenatal appointments. Refusing to allow this will result in unlawful treatment.
Poor performance during pregnancy: employers should not take any action under their disciplinary or capability procedures against a pregnant employee where the reason for the poor performance is due to her pregnancy.
Redundancy: redundancy criteria should not discriminate against employees who are, or who have been, pregnant or on maternity leave. Potentially redundant employees on maternity leave are entitled to be offered any suitable alternative vacancies in priority to other potentially redundant employees.
Charlotte Geesin is legal director at Howarths