Despite significant developments in the law over the last 30 years, many employers continue to discriminate against pregnant employees.

Every year, 30,000 women are sacked or forced to leave their employment because of pregnancy. A further 200,000 face other kinds of discrimination.

Less favourable Treatment

It has long been established law that less favourable treatment on the grounds of pregnancy is a form of sex discrimination (Webb v EMO Air Cargo (UK) Ltd (1995))

However, in October 2005, the Sex Discrimination Act 1975 was changed to make this protection clear. The amendment confirms that discrimination will arise if a woman suffers less favourable treatment either on the grounds of her pregnancy or because she wants to exercise her right to maternity leave (section 3A).

Section 47C of the Employment Rights Act 1996 also protects a woman from suffering a detriment on the grounds of her pregnancy. This can include any of the following:-

&bullPressure to resign

&bullInsensitive remarks

&bullUnfair selection for redundancy

&bullRefusal of training or promotion opportunities

&bullFailure to carry out an adequate risk assessment (see below)

In some circumstances, the discrimination would entitle the pregnant employee to resign and claim 'Constructive Dismissal'. This is where an employee resigns in circumstances where she feels unable to continue work due to the employer's conduct (Section 95(1)(c) Employment Rights Act 1996). It is treated as a dismissal and compensation can be claimed.

Failure to carry out a risk assessment

The Management of Health and Safety at Work Regulations 1999 require an employer to carry out a risk assessment in the workplace, including assessing the particular risks for pregnant women. This risk assessment is carried out in two stages.

The first stage is an assessment of the general risks to pregnant women in the work place.

The second stage, to be carried out in the event of an employee becoming pregnant, is an assessment of the specific risks to that particular pregnant employee.

An employer's failure to carry out an adequate risk assessment in respect of a pregnant employee is a form of sex discrimination (Hardman v Mallon t/a Orchard Nursing Home (2002)).

Unfair Dismissal

Dismissal for pregnancy or for reasons connected to pregnancy may be unfair in two separate situations.

The first is where a woman is dismissed for being pregnant or for pregnancy related reasons, either during her pregnancy or during her maternity leave. Such a dismissal would be automatically unfair under section 99 of the Employment Rights Act 1996. This includes dismissal for pregnancy related sickness (Brown v Rentokil Ltd (1998)

The second is where an employer refuses to allow an employee on maternity leave to return to work. This would be a breach of the employee's right to return to work and would amount to an unfair dismissal (Regs 18 and 20 of the Maternity and Parental Leave Regulations 1999).

An employer will rarely admit that an employee has been dismissed for bring pregnant. However, if an employee is dismissed whilst pregnant, it will be for the employer to prove that the dismissal was for a fair reason and not because of the pregnancy.

Compensation

If an employee has been unfairly dismissed from her employment, she will be entitled to compensation. This is made up of a 'basic award' and a 'compensatory award'

The basic award is determined by the employee's age and length of time in employment. It is calculated in the same way as a redundancy payment.

The compensatory award is intended to compensate the employee for loss of employment, that is the financial loss resulting from the dismissal. This includes loss of wages up to the date of the Employment Tribunal hearing, as well as future losses.

If the dismissal contains an element of sex discrimination, the employee will also be entitled to additional compensation for injury to feelings and any resulting health problems.

There is no limit to the level of compensation that an Employment Tribunal can award for pregnancy discrimination and it will always award at least £750.00.

Legal Advice

If you believe that you have suffered less favourable treatment as a result of being pregnant, we recommend that you obtain legal advice as soon as possible. There are strict time limits applying to discrimination and unfair dismissal claims. You should therefore contact a solicitor straight away in order to protect your position.