The Sex Discrimination Act specifically prohibits discrimination on the grounds of pregnancy or maternity leave.



Discrimination on these grounds is deemed to be automatically discriminatory on the grounds of sex without the need to provide a male comparator. A male comparator (actual or hypothetical) is used in other sex discrimination cases to test whether a man would have been treated more favourably in similar circumstances.

This protection exists during what is called the ‘protected period' from conception to the end of statutory maternity leave.

Who is covered?

Women are protected by the Sex Discrimination Act where they are:

• A job applicant

• An employee

• A worker

• Self-employed and personally providing a service

What is covered?

The Sex Discrimination Act's provisions for pregnancy and maternity cover all areas of employment, including, but not limited, to:

• Recruitment

• Promotion

• Training

• Redundancy selection

• Additional protection for employees

The Employment Rights Act and the Maternity and Parental Leave Regulations also give employees (not other workers) additional protection. This legislation makes dismissal automatically unfair if it is due to an employee's pregnancy or maternity leave. Subjecting a woman to any other detriment due to her pregnancy or maternity leave is unlawful.

Different types of pregnancy and maternity discrimination

Pregnancy and maternity discrimination arises where a woman is treated less favourably on the grounds of her:

• Pregnancy or pregnancy-related illness.

• Exercising, seeking to exercise, or having exercised or sought to exercise, the statutory right to maternity leave.

• Complying with the law prohibiting her working during compulsory maternity leave.

Women are also protected from unfair dismissal and detriment for reasons connected to:

• A failure to return after maternity leave when the employer had not notified her of her return date

• Working or refusing to work on keeping in touch days.

• A requirement or recommendation for a health and safety reason (where a woman is suspended for this reason, it must be on full pay).

• Being made redundant during the statutory maternity leave period and not being offered an existing suitable alternative vacancy.

Workplace rights for pregnant women and new mothers

Pregnant women and new mothers have specific workplace rights. It is important that employers and employees understand these rights. If an employer fails to observe these rights they may face an Employment Tribunal claim for unlawful sex discrimination and/or unfair dismissal.

Health and safety (pregnancy)

Employers must make suitable and sufficient health and safety assessments of the risks pregnant employees face at work.

Ante-natal appointments

All pregnant employees - regardless of hours worked or length or service - have a statutory right to paid time off for ante-natal care.

Maternity leave

All employees are entitled to one year's statutory maternity leave regardless of length of service.

Keeping in touch

Employees are now entitled to work for their employer during maternity leave for up to 10 days without bringing that leave to an end.

Maternity pay

Statutory maternity pay is now 39 weeks for those who qualify. Contracts of employment may provide for more generous terms and/or payments.

Compulsory maternity leave

All employees must take a minimum two weeks' maternity leave from the day of birth.

Pay and benefits

A woman may bring a sex discrimination and/or detriment claim if, as a result of maternity leave, she is denied benefit of the terms and conditions to which she is entitled (including pay rises, promotion and bonuses).

Holiday

Statutory paid annual leave (5.6 weeks) continues to accrue during ordinary maternity leave and additional maternity leave.

Health and safety after maternity leave

Employers must make suitable and sufficient assessment of the health and safety risks for new and breastfeeding mothers.

Breastfeeding

Employers must provide adequate rest and meal breaks and suitable rest facilities for breastfeeding mothers (not toilets).

Flexible working requests

All employees with a child under 16 have the right to request flexible working. Employers must give proper consideration to the request using the required statutory procedures.

Written reasons for dismissal

Regardless of their length of service, employees dismissed when they are pregnant or on maternity leave are entitled to receive written reasons for their dismissal without having to request them.

Unfair dismissal

It is automatically unfair to dismiss a female employee or select her for redundancy due to pregnancy or maternity. There is no minimum qualifying service period.

Redundancy

Employees on maternity leave have special protection from redundancy. Where a redundancy situation means it is not practical to continue to employ a woman on maternity leave under her existing contract of employment, she must be offered any suitable alternative vacancy and is given priority over and above any another employee who is also at risk of redundancy but not on maternity leave. This can be with an associated company. The terms and conditions must not be substantially less favourable than those of the previous contract. This preferential treatment over other employees is a rare example of lawful positive discrimination.

For more help and advice on pregnancy and maternity discrimination contact your local martin searle solicitors' by visiting www.ms-solicitors.co.uk or calling Brighton (01273) 609911 or Croydon (0208) 356 4490.