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Pregnancy or maternity
[ch 7: pages 225-228]Under section 18, 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” is:
• for a woman who qualifies for maternity leave, the period from the start of the pregnancy to the end of the woman’s maternity leave; and
• for a woman who does not qualify for maternity leave (for example a job applicant or an agency worker), the period from the start of the pregnancy until two weeks after the end of the pregnancy (section 18(6), EA 10).
Employers are not allowed to justify pregnancy or maternity discrimination under any circumstances (Webb v EMO Cargo (UK) Limited [1994] IRLR 482).
There is an important difference between pregnancy and maternity discrimination under section 18, EA 10 and “ordinary” sex discrimination under section 13, EA 10. This is the fact that a woman can bring a claim for pregnancy or maternity discrimination without having to show that a man (real or hypothetical) would have been treated differently. All the woman must show is that the treatment is unfavourable to her and that it is linked in some way to her pregnancy, or to exercising or trying to exercise her maternity rights.
For example, it would be pregnancy discrimination to treat a 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.
Even so, evidence that an employer treats other comparable workers (male or female) differently is often important, as it can help demonstrate that the unfavourable treatment is due to pregnancy or maternity, and not for some unrelated reason. “Unfavourable treatment” is any sort of work-related disadvantage or negative treatment linked to pregnancy.
The significance of the two contrasting levels of protection is highlighted by this case, which concerned post-natal depression that continued beyond the maternity leave:
Ms Lyons was unable to return to work at the end of her maternity leave because of post-natal depression and was eventually dismissed for sickness absence. Even though her illness was pregnancy-related, Lyons was not protected from pregnancy or maternity discrimination under section 18 EA 10, because the unfavourable treatment (dismissal) took place outside the “protected period”, which ended on the date she should have returned to work at the end of her maternity leave.
Following that date, a claim for sex (as opposed to pregnancy or maternity) discrimination could only succeed if Lyons could persuade the tribunal that her employer would have treated a comparable male employee (real or hypothetical) with a similar sickness record better (excluding any sickness absence during the pregnancy). The EAT was satisfied that this employer would have treated a male employee in the same way, so Lyons’ dismissal for absence due to post-natal depression could not be sex discrimination.
Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401
For some women, their experience of post-natal depression may amount to a disability, triggering the employer’s statutory duty to make reasonable adjustments (see page 253).
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). However, this special treatment must 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
• a right for employees to claim automatic unfair dismissal and detriment from the start of their employment (see Chapter 10).
Increase in pregnancy discrimination
EHRC research findings in 2016 – Pregnancy and Maternity-related discrimination and disadvantage – have revealed shocking levels of discrimination in UK workplaces, described by specialist charity Maternity Action as “widespread and entrenched”.
More than three-quarters of the women surveyed reported negative or discriminatory experiences in relation to pregnancy or maternity, and only one quarter expected to have their maternity rights respected.
Despite the report’s bleak outlook, it did include one positive message for trade unions, by making clear findings that employers that recognise a trade union are significantly more likely to value pregnant employees and new mothers, to have a high awareness of maternity rights, and to manage women’s return to the workforce effectively and supportively.
In August 2016, the House of Commons Women and Equalities Committee linked the rise in discrimination to the introduction of tribunal fees, and recommended that fees for such claims be substantially reduced, and that the existing time limit for bringing the claims be extended to take account of the particular practical challenges facing pregnant women and new mothers. The Ministry of Justice disagreed, in particular responding that “there Is no evidence to suggest that pregnancy and maternity-related discrimination claims have been more adversely affected by ET fees” (para 84, Review of the introduction of fees in the Employment Tribunals, Ministry of Justice, January 2017).
LRD booklet, Supporting pregnant workers – a union rep’s guide, September 2016 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1838)