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Pregnancy or maternity
[ch 7: pages 200-201]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 the woman 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 pregnancy and maternity discrimination during the protected period. A woman claiming pregnancy or maternity discrimination during the protected period does not have to compare herself with someone who is not pregnant or on maternity leave to bring a claim. In other words, unlike “ordinary” sex or gender discrimination, the test in a claim for pregnancy/maternity discrimination during the protected period is whether treatment is unfavourable, not whether it is less favourable than treatment given to someone who is not pregnant or on maternity leave.
Even so, evidence that others who were not pregnant or on maternity leave were treated differently is still important, as it can help to show that the unfavourable treatment was because of pregnancy or maternity, and not for some unrelated reason.
The significance of the two contrasting levels of protection is highlighted by this case, which concerned post-natal depression that continued after the end of the maternity leave period:
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 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.
After that date, she could only succeed in a sex discrimination claim if by dismissing her for sickness absence, her employer treated her less favourably than it would have treated an equivalent male employee (real or hypothetical) with a similar sickness record. The EAT was satisfied that in this case, the employer would have treated a male employee with the same amount of sickness absence in the same way, so Lyons’ dismissal for absence due to post-natal depression was not sex discrimination.
Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401
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 ante-natal care and maternity leave (see Chapter 9); and
• a right for employees to claim automatic unfair dismissal and detriment from the start of their employment (see Chapter 10).