Employment law- Pregnancy discrimination
What is Pregnancy Discrimination?
Under The Equality Act 2010, it is unlawful for an employer to discriminate against a woman because she is pregnant or recently given birth, or where she has pregnancy-related illness, or because she is on compulsory maternity leave, or due to the fact she has exercised (or is seeking to exercise) the right to maternity leave.
The protected period
The protection against pregnancy discrimination lasts for a specific period of time, which starts when you become pregnant. This is called the protected period. The period ends when your maternity leave finishes or when you return to work, whichever is the earlier.
If you don’t have the right to maternity leave – for example, because you’re not an employee, the protected period ends two weeks after your child is born.
There is no qualifying period that you need to work in order to bring a claim, so you have automatic protection, which even applies at the interview stage.
Unlike other discrimination claims, there is no need for you to show that you have treated less favourably than a male employee, or a female employee who was not pregnant. The only question you need to address is whether you would have received the same unfavourable treatment if you had not been pregnant or on maternity leave? If the answer is no, then you are likely to have experienced discrimination.
Some examples of pregnancy discrimination
- not offering you the same training or promotion opportunities;
- treating you unfavourably because you have a pregnancy-related sickness;
- dismissing you where you a shortly due to return from maternity leave (or after you have just returned;
- making you redundant because you are pregnant, or for reasons related your maternity leave;
- retaining the person who is covering for you whilst you are on maternity leave, therefore affecting your ability to go back to your old role.
What is the burden of proof in pregnancy related discrimination cases?
In short, you only need to prove a prima facie case. If you do prove facts from which can be concluded (in the absence of any other explanation), that the reason for the treatment was pregnancy related), then your employer then has to prove that the treatment was not for that reason. Your employer would need to show that the reason for the treatment was “in no way whatsoever” because of your pregnancy. If it remains present in any material way, your employer will struggle to convince an employment tribunal that its conduct was not related to your protected characteristic- and your claim will be likely to succeed.
Do I have the right to return to my old role at the end of maternity leave?
If you only take Ordinary Maternity Leave (the first 26 weeks) or return before the end of Ordinary Maternity Leave, you are entitled to return to your original role on the same terms and conditions as you had prior to your maternity leave.
If you take any Additional Maternity Leave (more than 26 weeks) you are generally entitled to return to ‘the same job on the same terms and conditions’, unless there is a good reason that it is not reasonably practical for you to do so. If it is not reasonably practical for you to return to your original role, you still have the right to return to a suitable alternative job, on terms and conditions which are at least as favourable as the terms you had prior to your maternity leave.
A situation where it might not be reasonably practical for you to return to your old role could be where there has been a re-organisation and your role has been moved to another location, or the nature of your role has changed in some way. However, a desire to keep your maternity cover on as a permanent staff member or a desire to give your role to someone else is not likely to be a good reason for not giving your old role back.
If you have not been offered an alternative role (or you feel the role you have been offered is unsuitable) you may have a claim for pregnancy discrimination and/or constructive dismissal.
What extra rights do you have compared to other employees in a redundancy situation?
If a redundancy situation arises, this is one of the few areas of law where an employer is allowed to “positively discriminate”. You have the right to be offered any suitable alternative vacancy, if one is available, without an interview. This right is over and above what your colleagues are entitled to that are not on maternity leave, so you could effectively “jump the queue” in relation to a new role. The reality, however, is that employers do not always pro-actively source new positions as much as they should, so this needs to be carefully monitored. If your employer cannot offer you suitable alternative work, you may be entitled to redundancy pay.
Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for pregnancy discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon.
The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, which are, from 6th April 2023:
TOP BAND FOR THE MOST SERIOUS CASES: £33,700 – £56,200 (although it can exceed this in exceptional cases);
MIDDLE BAND: £11,200 – £33,700
LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £1,100 – £11,200
Can I also claim personal injury in the employment tribunal due to the discrimination I have received?
Although you cannot bring a standalone personal injury claim in the Employment Tribunal, you can claim compensation for psychiatric or physical injuries which you may have suffered due to the discrimination you have received from your employer.
In most cases, any claim for personal injury within the context of employment law cases relate to psychological injury as opposed to physical injury. This incudes stress and anxiety and injury to feelings, and this has to be attributable to your employers’ conduct rather than for personal reasons. Often, you would need medical evidence to identify whether your injury is indeed caused by reasons of discrimination.
Other than compensation for injury to feelings, as mentioned above, other compensation in the employment tribunal for personal injury is calculated on the following basis:
- “General Damages” (e.g. pain & suffering, and loss of amenity, such as taking part in hobbies or other lifestyle events)
- “Special Damages” (this relates to financial compensation, including loss of earnings and other quantifiable sums).
The time limit for making a claim for pregnancy discrimination to the employment tribunal is three months less one day from the last act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal, but this doesn’t mean it is in your interest to do so before taking legal advice. ACAS will not protect your interests in the same way as a professional adviser.
A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three month period runs from the end of the continuing act.
Tribunals do have discretion to allow late claims to proceed, but there must be a good reason why a claim was not made in time.
You should obtain professional advice as soon as possible if you think you have a claim.