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 whether it is less favourable than the treatment given to someone else (male or female) who is not pregnant or on maternity leave.

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

The contrast between the higher level of protection during the “protected period” and that of “ordinary” sex discrimination laws is illustrated by the recent case of Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401. The case involved a woman dismissed for absences caused by post-natal depression after the maternity leave period had ended. The EAT accepted that her dismissal was “unfavourable” treatment for a pregnancy-related reason. However, she was not protected from pregnancy or maternity discrimination under section 18 EA 10, because the dismissal took place after the end of the “protected period”.

Lyons’ claim for “ordinary” direct sex discrimination also failed, because when a pregnancy-related illness lasts beyond the end of the maternity leave, an employer is allowed to take into account pregnancy-related absences (excluding the absences during the protected period) and compare its treatment of the woman with the way it would have acted towards a man with the same sickness record (Brown v Rentokil C-394/96 [1998] IRLR 445). In this case, the EAT ruled that the employer would have treated a male employee with the same amount of sickness absence in the same way. This meant that Lyons’ dismissal for absence due to post-natal depression was not sex discrimination.

In Metropolitan Police v Keohane [2014] UKEAT 0463/12/0403, the EAT ruled that it was pregnancy discrimination to remove a dog from a police dog handler when she was not operational due to pregnancy. Losing the dog as a companion would not have been enough for a claim, but the dog’s permanent removal, which would have harmed career progression and reduced the scope to earn overtime, was an unlawful detriment.

Union reps should remember that there are also 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).