It is unlawful to discriminate against someone, or treat them unfairly, because of pregnancy or maternity. There are two main types of pregnancy and maternity discrimination – unfavourable treatment and victimisation.
Employees are protected against unfavourable treatment because of pregnancy or maternity. This means an employee or job applicant must not be disadvantaged because of their pregnancy or maternity. For example, they must not:
- be subjected to unfair treatment because of pregnancy or maternity
- suffer disadvantage because of pregnancy or maternity through the employer’s policies, procedures, rules or practices
- suffer unwanted behaviour because of pregnancy or maternity.
There is no need for an employee to compare treatment to how someone else is treated. This protection also means that treatment which impacts on an employee negatively because of pregnancy or maternity may be discriminatory even though other staff are treated the same way.
Victimisation is when an employee suffers what the law terms a ‘detriment’ – something that causes disadvantage, damage, harm or loss because of things like:
- making an allegation of discrimination
- supporting a complaint of discrimination
- giving evidence relating to a complaint about discrimination
- raising a grievance concerning equality or discrimination
- doing anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination.
Victimisation can also occur because an employee is suspected of doing one or more of these things, or because it is believed they may do so in the future.
Differences between pregnancy and maternity discrimination and other protected characteristics
Pregnancy and maternity discrimination is broken down into discrimination for unfavourable treatment and victimisation. This is different to how the other protected characteristics are covered, but in most cases the protections are broadly similar or stronger for pregnancy and maternity.
Pregnancy and maternity discrimination protection mainly applies to a specific period of time known as the protected period. The law says that after the protected period in pregnancy and maternity has ended, an action after that time might still amount to unfavourable treatment because of pregnancy and maternity if it stemmed from an action or decision within the protected period. Or, after the period, a woman might claim her treatment because of her pregnancy or maternity amounted to less favourable treatment because of her sex.
Employees are sometimes treated unfairly because they are assumed to be pregnant, or because they are connected in some way to someone who is pregnant or taking maternity leave. They are not protected under the pregnancy and maternity protected characteristic but could be under other protected characteristics such as sex or sexual orientation.
Supporting employees through pregnancy and maternity
There are simple steps an employer should take once an employee says she is pregnant. To manage the situation, employer and employee should plan ahead and consider the needs and wellbeing of both employee and business.
There are special considerations to handle during the pregnancy, the maternity leave period and on the return to work. Employers should familiarise themselves with these as early as possible.
Agreeing a method of regular communication is essential. While it’s particularly important to get this right during the maternity leave period, it’s also important to make time to talk during pregnancy and the return to work too.
Be open minded and flexible with how the employee’s work is carried out. This depends on the circumstances but might involve greater flexibility to handle morning sickness, arranging temporary cover during maternity leave and considering flexible working arrangements like job-sharing when the employee returns.
It is important to keep in mind that an employee who feels they have been treated well during their pregnancy and maternity is likely to be more loyal, engaged, flexible and productive.