Pregnancy or maternity

Under section 18 of the EA 10 (Pregnancy and maternity discrimination: work cases), it is unlawful to treat a woman unfavourably during the “protected period”:

• because of her pregnancy;

• because of a pregnancy-related illness;

• because she is on compulsory maternity leave; or

• because she has taken or asked to take ordinary or additional maternity leave.

The “protected period” begins at the start of the pregnancy and ends when she returns to work at the end of her maternity leave. It is also sex discrimination under the EA 10 to treat a woman unfavourably because she is breastfeeding.

There is an important difference between “ordinary” sex or gender discrimination and the special protection the law gives women suffering pregnancy and maternity discrimination. A woman claiming pregnancy or maternity discrimination does not have to compare herself with another worker (real or hypothetical) who is not pregnant or on maternity leave in order to bring a claim. In other words, unlike sex or gender discrimination, the test in a claim for pregnancy/maternity discrimination is whether the treatment is unfavourable, as opposed to less favourable than the treatment given to someone else (male or female) who is not pregnant or on maternity leave.

Even so, it can be useful to produce evidence that others who were not pregnant or on maternity leave were treated differently, to help demonstrate that the unfavourable treatment was because of pregnancy or maternity, and not for some unrelated reason.

Remember too that there are other sources of protection for pregnant workers and women on maternity leave. These include health and safety rights under the Management of Health and Safety at Work Regulations 1999, and the Workplace Health, Safety and Welfare Regulations 1992, rights to time off for ante-natal care and maternity leave (see Chapter 8) and protection from unfair dismissal and detriment (see Chapter 10).