Pregnancy-related sickness absence
[page 104]It is unlawful to treat a worker unfavourably because of their pregnancy or pregnancy-related sickness (section 18(2) EA 10). This means that all pregnancy-related absences should be excluded from sickness absence records in relation to absence management procedures, selection for redundancy, eligibility for promotion or bonus payments, or for any other reason that would result in a pregnant worker being unfavourably treated. There is no need for a comparator.
It is also against the law to subject any employee to a detriment (such as a formal attendance warning) for any reason related to pregnancy, childbirth or maternity, for example, by penalising a worker for attending an ante-natal appointment (section 47(C)(2)(a), Employment Rights Act 1996 (ERA 96), regulation 19, Maternity and Parental Leave etc Regulations 1999 (MAPLE 99)).
It is automatically unfair to dismiss an employee for a reason relating to their pregnancy, childbirth or maternity. There is no length of service requirement and no minimum number of hours that need to be worked to gain this protection.
For a dismissal to be due to pregnancy, whoever takes the decision to dismiss must know, before taking the decision, that the employee is pregnant (Really Easy Car Credit Ltd v Thompson [2018] UKEAT/1097/17).