Pregnancy and Maternity Discrimination

Pregnancy and Maternity Discrimination

Pregnancy and maternity discrimination in employment is a critical area covered by the Equality Act 2010 (EqA 2010), designed to protect individuals in England, Scotland, and Wales. It is one of nine "protected characteristics" under the EqA 2010, alongside age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. While the Act generally takes a consistent approach to discrimination across characteristics, the protection for pregnancy and maternity has several distinct features.

Despite legal protections, pregnancy and maternity discrimination significantly affects many women. Surveys reveal a concerning prevalence:

• In June 2017, the Equality and Human Rights Commission (EHRC) found that 77% of mothers surveyed experienced negative and possibly discriminatory treatment during pregnancy, maternity leave, or upon return to work.

• The EHRC also reported that up to 54,000 mothers per year were dismissed, made redundant, or treated so poorly that they felt compelled to leave their jobs.

• A February 2025 survey by Pregnant Then Screwed indicated that 74,000 women annually lose their jobs for getting pregnant or taking maternity leave, a 37% increase from earlier EHRC figures.

• Half of pregnant women, those on maternity leave, or those returning to work, reported a negative experience, yet only 2% of those experiencing discrimination bring a tribunal claim.

• The COVID-19 pandemic reportedly exacerbated these problems.

The EHRC Employment Statutory Code of Practice (EHRC Code) and other guidance, such as the EqA 2010 explanatory notes, provide crucial context for interpreting the Act.

Who is Protected?

The EqA 2010 offers broad protection in employment, occupation, and vocational training, covering employees, partners, barristers, agency workers, and some self-employed contractors. This means that while statutory maternity leave might only apply to employees, a wider group benefits from anti-discrimination rights. For instance, replacing an agency worker due to frequent morning sickness could be discriminatory.

The EqA 2010 protects explicitly "a woman" from less favourable treatment related to "a pregnancy of hers". Section 212(1) defines "woman" as "a female of any age". The Supreme Court, in For Women Scotland Ltd v Scottish Ministers, clarified that "man," "woman," and "sex" in the EqA 2010 refer to biological sex, even for individuals with a gender recognition certificate (GRC). Importantly, a trans man who becomes pregnant is protected under sections 17 and 18 of the EqA 2010, as they are treated as a biological woman for these purposes following the Supreme Court's decision.

Key Prohibitions: Section 18 of the Equality Act 2010

Pregnancy and maternity are protected characteristics, though unlike others, it is not explicitly defined in the Equality Act 2010. Section 18 of the EqA 2010 specifically prohibits discrimination in employment. It is unlawful for an employer to treat a woman unfavourably because:

• Of her pregnancy (section 18(2)(a)).

• Of an illness she suffered as a result of her pregnancy during the protected period (section 18(2)(b)).

• She is on compulsory maternity leave or, since 1 January 2024, mandatory equivalent leave (section 18(3)).

• She is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or, since 1 January 2024, equivalent maternity leave (section 18(4)).

"Equivalent compulsory leave" and "equivalent maternity leave" refer to periods of leave of a substantially similar nature, provided under statutory or contractual schemes.

Notably, the test under section 18 is "unfavourable treatment," not "less favourable treatment", which is used for direct discrimination for other characteristics. This means no comparator is required for a section 18 claim. However, identifying a comparator can still be helpful to determine if the treatment was indeed "because of" pregnancy or maternity leave. An act prohibited by section 18 is expressly not direct sex discrimination under section 13.

Unfavourable Treatment and the "Because Of" Test

"Unfavourable treatment" is broadly analogous to "disadvantage" or "detriment". For example, a pregnant police officer's transfer from a response role to a back-office role against her wishes, contrary to a risk assessment, was deemed "unfavourable treatment".

The terminology "because" or "because of" in section 18 carries the same meaning as in direct discrimination cases. Courts distinguish between:

• Inherently discriminatory grounds ("criterion" cases): Where the criterion applied is intrinsically discriminatory.

• Subjectively discriminatory grounds ("reason why" cases): Where the reason for the treatment is not immediately apparent, requiring an examination of the employer's mental processes.

While a "but for" test (e.g., "but for the pregnancy, would she have suffered the unfavourable treatment?") can be helpful, it is not always determinative. The focus is on the employer's conscious or subconscious reason for the treatment. For instance, an employer's failure to inform an employee on maternity leave about a new position was considered "administrative oversight" in one case, but "because she had taken maternity leave" in another, highlighting the importance of the specific "reason why" test. Similarly, a dismissive attitude towards a pregnant employee's workload concerns, inferred to be because she was stereotyped as "an emotional, hormonal pregnant woman," constituted discrimination.

Crucially, pregnancy or maternity leave does not have to be the only or principal reason for the unfavourable treatment; it only needs to influence the employer's decision-making materially. For discrimination to occur, the alleged discriminator must know about the pregnancy.

The Protected Period

The "protected period" under the EqA 2010 is key to section 18 claims. It starts when a woman's pregnancy begins. It ends:

• At the end of ordinary and additional maternity leave, or earlier, upon her return to work.

• Since 1 January 2024, at the end of equivalent maternity leave, or earlier, upon her return to work.

• If she does not have those rights (e.g., job applicants, agency workers, or cases of miscarriage/stillbirth before 24 weeks), at the end of the two-week period beginning with the end of the pregnancy.

The Equality Act 2010 (Amendment) Regulations 2023, effective 1 January 2024, expanded the protected period to include "equivalent maternity leave" and extended protection to cover unfavourable treatment occurring after the end of the protected period if it is because of pregnancy or pregnancy-related illness during that period. This change specifically reproduces the effect of Brown v Rentokil Ltd in domestic law.

Special Treatment of Women

The EqA 2010 states that "special treatment afforded to a woman in connection with pregnancy, childbirth or maternity" must be disregarded for direct sex discrimination claims. This means a man cannot claim sex discrimination because he was not given the same special treatment. For example, a man cannot compare himself to a pregnant woman who was not warned for lateness due to morning sickness.

Since 1 January 2024, this provision has been expanded to explicitly include "maternity" in addition to "pregnancy or childbirth," reflecting wider EU case law. However, this provision does not permit blanket special treatment; it only allows for more favourable treatment to the extent "reasonably necessary to remove the disadvantages occasioned by their condition". For instance, inflating a maternity leave employee's redundancy score disproportionately, rather than evaluating pre-leave performance, was deemed sex discrimination against a male colleague.

Since 6 April 2024, employees on maternity leave (or adoption/shared parental leave), pregnant women who have notified their employer, and those returning from maternity leave (for an additional 18-month protected period) must be given first refusal on any suitable alternative vacancies in a redundancy exercise. This is a statutory exception to the "special treatment" rule.

The law also addresses shared parenting. While maternity leave has unique purposes (e.g., recovery from childbirth, breastfeeding), parental leave for childcare should generally be available to both mothers and fathers without discrimination.

Common Issues: Pregnancy and Pregnancy-Related Illness

Employers cannot demand that an employee not be pregnant to perform a job. If necessary, a temporary employee should be hired to cover the pregnant employee's post, and financial loss to the employer cannot justify discrimination.

Key issues include:

• Recruitment: Employers should avoid asking job applicants about pregnancy or plans to have children. It is unlawful to withdraw a job offer or dismiss a woman for not disclosing pregnancy during an interview.

• Promotion: It is discriminatory not to inform a pregnant employee or one on maternity leave about suitable vacancies, discourage their application, or fail to promote them if they are the best candidate.

• Health and Safety: Employers have a duty to assess workplace risks and alter working conditions or hours for new or expectant mothers. Failure to conduct a risk assessment or taking a dismissive attitude to pregnancy-related workload concerns can constitute discrimination.

• Antenatal Appointments: Pregnant employees are entitled to paid time off for antenatal appointments. Refusal or any detriment for taking time off is unlawful discrimination.

• Poor Performance: Employers should not take disciplinary action against a pregnant employee for poor performance if it is due to her pregnancy (e.g., pregnancy-related illness). However, performance issues unrelated to pregnancy, or those arising before pregnancy, can be addressed.

• Miscarriage and Stillbirth: Sickness absence related to miscarriage should be treated like any other pregnancy-related sickness absence. Acas guidance emphasises sensitive communication and non-discrimination for bereaved employees.

Common Issues: Maternity Leave

• Training and Development: Employers must ensure women on maternity leave are informed of and able to apply for job, promotion, and training opportunities. Excluding them is unfavourable treatment.

• Redundancy: Redundancy selection criteria must not discriminate against employees who are, or have been, pregnant or on maternity leave (e.g., not counting pregnancy-related absences for attendance scores). Employees on maternity leave (and now pregnant women and those returning from maternity leave) have a priority right to suitable alternative vacancies. Failure to comply can lead to automatic unfair dismissal and discrimination claims.

• Dismissal: It is discriminatory and automatically unfair to dismiss a woman because she is pregnant or due to any pregnancy-related reason. Employers must provide written reasons for dismissal if employment ends during pregnancy or maternity leave.

Direct Discrimination (Section 13 EqA 2010) and Retained EU Law

While section 18 provides specific protection for pregnancy and maternity discrimination without a comparator, a woman could potentially bring a claim for direct pregnancy and maternity discrimination under section 13 (which generally requires a comparator), primarily if the unfavourable treatment occurs outside the protected period.

Historically, protection against pregnancy discrimination derived from direct sex discrimination principles under EU law. The Webb principle (established in Webb v EMO Air Cargo (UK) Ltd (No 2)) stated that discrimination on grounds of pregnancy is automatically discrimination on grounds of sex, thus no male comparator is required. This principle was codified in section 18 of the EqA 2010.

The EqA 2010 (Amendment) Regulations 2023, effective 1 January 2024, ensure that domestic law fully aligns with retained EU law, particularly regarding unfavourable treatment occurring after the protected period due to pregnancy or pregnancy-related illness during that period (Brown v Rentokil). EU case law has given a wide meaning to "because of pregnancy," covering reasons like unavailability for work, absence during a fixed-term contract, economic consequences for the employer, health and safety implications, and even concealing pregnancy.

The Commissioner of the City of London Police v Geldart case confirmed that if maternity was the reason for unfavourable treatment, a male comparator would not be necessary even for a direct discrimination claim under section 13. However, Geldart introduced a nuance for payment claims: the Court of Appeal distinguished non-payment of an allowance during maternity leave from dismissal, stating that not paying a woman more than her entitlement during maternity leave is not necessarily sex discrimination, even if the reason for non-payment was absence due to maternity. This decision is potentially controversial.

Other Types of Discrimination

• Indirect Discrimination: Pregnancy and maternity are explicitly excluded from the indirect discrimination provisions of section 19. However, indirect sex discrimination may apply in relevant situations.

• Harassment: Pregnancy and maternity are not relevant protected characteristics for harassment. Nevertheless, a pregnant employee or one on maternity leave can bring a claim for sex harassment. Examples include unpleasant gossip related to pregnancy or failure to provide suitable facilities for expressing breastmilk.

• Victimisation: Protection applies where an individual is subjected to a detriment for having done (or intending to do) a "protected act," such as bringing proceedings, giving evidence, or alleging a contravention under the EqA 2010. Protection extends to mistaken but good-faith complaints.

• Association and Perception: The EqA 2010 generally extends the prohibition against associative and perceptive direct discrimination to all protected characteristics. However, the EHRC Code suggests that for pregnancy and maternity, an individual treated less favourably due to association with a pregnant woman may need to bring a sex discrimination claim. Case law supports the idea that direct sex discrimination claims can arise from association with a pregnant woman.

Exceptions: When Pregnancy and Maternity Discrimination May Be Lawful

Certain exceptions allow for differential treatment:

• Pay during Maternity Leave: While women on statutory maternity leave retain most contractual terms, they are generally not entitled to remuneration as if they were at work. However, a "maternity equality clause" ensures pay increases and specific bonuses related to work before or during compulsory maternity leave are accounted for.

• Occupational Requirement Exception: It is unclear whether the general occupational requirement defence applies to pregnancy and maternity. For example, an employment tribunal rejected an employer's argument that an actor needed to be "not visibly pregnant" as a proportionate means of achieving a legitimate aim.

• Protection of Women: Employers are permitted to treat women differently to comply with legislation (e.g., health and safety) designed to protect women in relation to pregnancy and maternity or other specific risks.

• Other Exceptions: These include acts done for national security, certain situations concerning benefits to the public, and specific provisions for insurance contracts.

This comprehensive framework aims to protect pregnant employees and new mothers from disadvantage in the workplace, although challenges persist in practice.