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Pregnancy Discrimination Grievance Investigation
Investigating a Pregnancy and Maternity Discrimination Grievance
The fact-finding exercise
The investigation into a grievance concerning pregnancy or maternity discrimination is a crucial fact-finding exercise designed to gather all relevant information, enabling the employer to make an informed decision. Pregnancy and maternity are designated as protected characteristics under the Equality Act 2010 (EqA 2010). Unlike investigations into most other forms of direct discrimination (Section 13), a claim brought under Section 18 of the EqA 2010 requires the investigator to assess whether the woman was treated unfavourably, rather than less favourably than a comparator, meaning a comparator is not required. The investigator must be fair and objective, searching for evidence that both supports and contradicts the allegation. Given the complexity of discrimination complaints, it is usually advisable to appoint an investigator who is senior and experienced. The investigator must also be impartial and independent, having had no prior involvement in the case.
My Role and Responsibilities as an Investigator
Preparation and meticulous planning are vital for an effective investigation. The investigator's role and responsibilities should be clearly outlined in their terms of reference. An investigation plan must be drafted early to ensure the process is thorough and completed promptly, as undue delay risks memories fading or perceptions of unfairness. The investigator should review all relevant internal policies, specifically including grievance, disciplinary, health and safety, and equal opportunities policies. A core element of the investigation is defining the "protected period," which begins when the woman becomes pregnant and ends following the conclusion of additional maternity leave (or equivalent contractual leave) or two weeks after the end of the pregnancy, if she has no right to leave. The investigator must be aware that unfavourable treatment occurring after the protected period may still constitute discrimination if it occurred because of her pregnancy or related illness suffered during that period (a protection extended since 1 January 2024).
Interviewing
When conducting interviews, the investigator should ordinarily interview the employee who raised the grievance first to gain a thorough understanding of the issues. Meetings should be held in a private room, and the questioning style must be neutral and non-confrontational. The fundamental task is to determine the reason why the unfavourable treatment occurred. This involves examining the conscious or subconscious mental processes of the alleged discriminator. While a "but for" test (asking whether the treatment would have happened had the woman not been pregnant or on leave) may assist, it is not necessarily determinative. It is crucial to confirm that the alleged discriminator had knowledge of the pregnancy to sustain a claim that the treatment was because of it. The investigator must also look for evidence that the pregnancy or maternity leave materially influenced the unfavourable treatment, even if it was not the only or main reason.
Health & Safety and a risk assessment
The investigation must cover specific areas where discrimination frequently arises. For instance, the investigator should scrutinise actions related to health and safety obligations, such as failure to carry out a required risk assessment once notified of the pregnancy, or implementing enforced transfers to a different role against the employee's wishes.
Pregnancy-Related Absence
The investigator must verify that the employer did not take into account any pregnancy-related absences during the protected period when applying attendance management or performance procedures, as these absences must be disregarded. If the grievance relates to redundancy, the investigator must check whether the employee was denied job opportunities (like promotions or vacancies) because she was absent on maternity leave, or, if selected for redundancy, whether she was afforded the priority right to be offered a suitable alternative vacancy (if available) during the protected period, as failure to do so is automatically unfair and likely discriminatory under Section 18. Throughout the process, the investigator must keep accurate records of all meetings and evidence collected.
Confidentiality
To manage the sensitive nature of these complaints, confidentiality is paramount. It is good practice to ensure support, such as access to an employee assistance programme, is offered to all involved. Suppose temporary measures are necessary, such as separating employees into different teams. In that case, the employer must ensure that the employee who raised the grievance is not moved unless they request it, as this could be viewed as victimisation.
The Pregnancy and Maternity Discrimination Grievance Report
Upon concluding the fact-finding, the investigator must produce an objective and concise report, avoiding technical jargon. The report must clearly outline the established facts and those that remain unestablished. For contested facts, the investigator determines what occurred on the balance of probabilities. The employer should then communicate the decision, including the right of appeal, in writing without unreasonable delay.
Investigating a Pregnancy and Maternity Discrimination Grievance
The fact-finding exercise
The investigation into a grievance concerning pregnancy or maternity discrimination is a crucial fact-finding exercise designed to gather all relevant information, enabling the employer to make an informed decision. Pregnancy and maternity are designated as protected characteristics under the Equality Act 2010 (EqA 2010). Unlike investigations into most other forms of direct discrimination (Section 13), a claim brought under Section 18 of the EqA 2010 requires the investigator to assess whether the woman was treated unfavourably, rather than less favourably than a comparator, meaning a comparator is not required. The investigator must be fair and objective, searching for evidence that both supports and contradicts the allegation. Given the complexity of discrimination complaints, it is usually advisable to appoint an investigator who is senior and experienced. The investigator must also be impartial and independent, having had no prior involvement in the case.
My Role and Responsibilities as an Investigator
Preparation and meticulous planning are vital for an effective investigation. The investigator's role and responsibilities should be clearly outlined in their terms of reference. An investigation plan must be drafted early to ensure the process is thorough and completed promptly, as undue delay risks memories fading or perceptions of unfairness. The investigator should review all relevant internal policies, specifically including grievance, disciplinary, health and safety, and equal opportunities policies. A core element of the investigation is defining the "protected period," which begins when the woman becomes pregnant and ends following the conclusion of additional maternity leave (or equivalent contractual leave) or two weeks after the end of the pregnancy, if she has no right to leave. The investigator must be aware that unfavourable treatment occurring after the protected period may still constitute discrimination if it occurred because of her pregnancy or related illness suffered during that period (a protection extended since 1 January 2024).
Interviewing
When conducting interviews, the investigator should ordinarily interview the employee who raised the grievance first to gain a thorough understanding of the issues. Meetings should be held in a private room, and the questioning style must be neutral and non-confrontational. The fundamental task is to determine the reason why the unfavourable treatment occurred. This involves examining the conscious or subconscious mental processes of the alleged discriminator. While a "but for" test (asking whether the treatment would have happened had the woman not been pregnant or on leave) may assist, it is not necessarily determinative. It is crucial to confirm that the alleged discriminator had knowledge of the pregnancy to sustain a claim that the treatment was because of it. The investigator must also look for evidence that the pregnancy or maternity leave materially influenced the unfavourable treatment, even if it was not the only or main reason.
Health & Safety and a risk assessment
The investigation must cover specific areas where discrimination frequently arises. For instance, the investigator should scrutinise actions related to health and safety obligations, such as failure to carry out a required risk assessment once notified of the pregnancy, or implementing enforced transfers to a different role against the employee's wishes.
Pregnancy-Related Absence
The investigator must verify that the employer did not take into account any pregnancy-related absences during the protected period when applying attendance management or performance procedures, as these absences must be disregarded. If the grievance relates to redundancy, the investigator must check whether the employee was denied job opportunities (like promotions or vacancies) because she was absent on maternity leave, or, if selected for redundancy, whether she was afforded the priority right to be offered a suitable alternative vacancy (if available) during the protected period, as failure to do so is automatically unfair and likely discriminatory under Section 18. Throughout the process, the investigator must keep accurate records of all meetings and evidence collected.
Confidentiality
To manage the sensitive nature of these complaints, confidentiality is paramount. It is good practice to ensure support, such as access to an employee assistance programme, is offered to all involved. Suppose temporary measures are necessary, such as separating employees into different teams. In that case, the employer must ensure that the employee who raised the grievance is not moved unless they request it, as this could be viewed as victimisation.
The Pregnancy and Maternity Discrimination Grievance Report
Upon concluding the fact-finding, the investigator must produce an objective and concise report, avoiding technical jargon. The report must clearly outline the established facts and those that remain unestablished. For contested facts, the investigator determines what occurred on the balance of probabilities. The employer should then communicate the decision, including the right of appeal, in writing without unreasonable delay.