Direct pregnancy and maternity discrimination



No comparator is needed to claim pregnancy or maternity discrimination during the protected period (see page 218). 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, for example, by asking to take maternity leave. Unlike a sex discrimination claim, a woman can claim pregnancy or maternity discrimination without having to show that a man would have been treated better. For example, it would be pregnancy discrimination to treat a pregnant woman negatively for taking time off to attend antenatal appointments. There is no 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 male colleague or a female co-worker who is not pregnant is likely to strengthen the woman’s argument. 



There can only be pregnancy discrimination if the perpetrator of the unfavourable treatment knows the woman is pregnant. The ban on pregnancy discrimination does not require an employer to revisit a decision (for example, to dismiss) if they later find out about the pregnancy (Really Easy Car Credit Limited v Thompson [2018] UKEAT/0197/17/DA). 



As with other kinds of direct discrimination, the woman’s 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 subconscious) 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. Something is not “unfavourable” just because it could have been better (Williams v Trustees of Swansea University Pension and Assurance Scheme and another [2018] UKSC 65).


The mere fact that you are pregnant or on maternity leave when you are treated unfavourably is not enough to establish pregnancy or maternity discrimination. Again, it is sensible to keep asking "reason why" questions. Was one reason for the negative treatment the woman's pregnancy or her decision to exercise (or not to exercise) maternity rights? If not, there will be no discrimination (Sefton Borough Council v Wainwright [2015] IRLR 90, Interserve FM Limited v Tuleikyte [2017] UKEAT/0267/16/JOJ). Examples might include withholding a promotion from a woman because she decides to take a full year’s maternity leave, or deciding not to consult her because she is on maternity leave: 


Only a pregnant woman is protected from pregnancy discrimination. There is no statutory protection from either “associative” or “perceived” pregnancy or maternity discrimination (see page 223). For example, it would not be pregnancy discrimination to treat someone unfavourably because their partner is pregnant, or because the employer mistakenly believes a woman is pregnant (although this could be sex discrimination if a man would be treated differently). 



In claims by men alleging sex discrimination, 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, including the right to a maternity suspension, see Chapter 4 — (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);


• enhanced legal protection from selection for redundancy and special rights to any suitable available vacancy where the redundancy situation overlaps with the maternity leave (see Chapter 11).