Direct pregnancy and maternity discrimination


No comparator is needed to claim pregnancy or maternity discrimination during the protected period (see page 206). Instead, all the woman must show is that she was treated unfavourably because of her pregnancy or maternity or because she exercised or tried to exercise maternity rights. In other words, unlike a claim for sex or gender discrimination, a woman can claim pregnancy or maternity discrimination without having to show that a man (real or hypothetical) would have been treated more favourably. 


For example, it would be pregnancy discrimination to treat a pregnant woman negatively for taking time off to attend antenatal appointments. She would not need to show that a man taking the same amount of time off work for medical appointments would have been treated differently.




In practice, being able to point to the different treatment of a comparable male colleague or female worker who is not pregnant helps strengthen the argument that the reason for the difference in treatment must have been pregnancy or maternity. 


To carry out pregnancy discrimination, the decision-maker must know of the pregnancy when taking the relevant decision (Really Easy Car Credit Limited v Thompson [2018] UKEAT/0197/17/DA). 


As with other kinds of direct discrimination, pregnancy or maternity need not be the only or even the main reason for the treatment. It is enough that it has significant influence (even if sub-conscious) on the decision to treat the woman unfavourably. 


“Unfavourable treatment” is any work-related disadvantage or negative treatment due at least in part to pregnancy or maternity.
What is “unfavourable” is a question of fact for the good sense of tribunals (Trustees of Swansea University Pension & Assurance Scheme v Williams [2015] UKEAT/0415/14). 


The mere fact that a woman happens to be pregnant or on maternity leave when unfavourable treatment occurs is not enough to establish pregnancy or maternity discrimination (Sefton Borough Council v Wainwright [2015] IRLR 90). Instead, the unfavourable treatment must be due in some way to the pregnancy or maternity leave. For example, if everyone off work, including the woman on maternity leave, is treated in the same negative way, there will no maternity discrimination (Interserve FM Limited v Tuleikyte [2017] UKEAT/0267/16/JOJ) (although there might be indirect sex discrimination if the employer's practice impacts disproportionately on women — see page 218). 


Only a pregnant woman is protected from pregnancy discrimination. This means that there is no statutory protection from “associative” or “perceived” pregnancy or maternity discrimination (see page 212). For example, it would not be pregnancy discrimination for an employer to treat someone unfavourably because the employer mistakenly believes she is pregnant (although this could be sex discrimination if a man would be treated differently). 


In claims of sex discrimination by men, no account can be taken of special treatment given to a woman in connection with pregnancy or childbirth (Section 13(6)(b), EA 10), as long as this special treatment does not go beyond what is reasonably necessary to remove any disadvantage to the woman resulting from pregnancy, childbirth or maternity leave. Otherwise the employer risks a discrimination claim by any male employee who loses out (Eversheds Legal Services Limited v de Belin [2011] UKEAT 0352/10/0604).




Other important laws protecting pregnant workers and women on maternity leave include:



• health and safety rights (the Management of Health and Safety at Work Regulations 1999, and the Workplace Health, Safety and Welfare Regulations 1992);


• rights to time off for antenatal care and maternity leave (see Chapter 9);


• equal treatment rights for pregnant temporary agency workers (see Chapter 2); and




• the right to claim automatic unfair dismissal and detriment from day one of employment (see Chapter 10).