Pregnancy Discrimination in the Workplace

Examples of Pregnancy Discrimination

There are several instances where someone may be subject to pregnancy or maternity discrimination. For example, whilst you’re pregnant, your employer could:

• Demote you or give you a bad appraisal
• Fail to offer you training or promotion opportunities
• Make you redundant
• Discipline or dismiss you, potentially related to sickness absences caused by your pregnancy
• Fail to undertake a risk assessment

Your Terms and Conditions During Pregnancy

You’re entitled to the same terms and conditions that you enjoyed prior to informing your employer that you’re pregnant. You should, therefore, still be entitled to any benefits that you would normally receive as wages in kind, such as health insurance or company cars.

If you’re not provided with these benefits or your terms and conditions are changed without your agreement whilst you’re pregnant then you may have a claim for pregnancy or sex discrimination.

Discrimination for Pregnancy-Related Sick Leave or Sickness Record

Pregnancy and maternity discrimination can occur if an employer treats you unfavourably because of pregnancy-related illness. This is the case regardless of whether you’re a current employee or a job applicant. Your employer isn’t permitted to consider pregnancy-related absences (during the “protected period”) for attendance management, disciplining you, or dismissing you.

Case study:

In Mulla v Enigma Fashiions UK Limited & R Rajshakha, the Employment Tribunal held that Ms Mulla had been discriminated against because of her pregnancy. As a result, she was awarded £55,963.58 as compensation.

If you’re absent from work because of an illness suffered due to your pregnancy, you’re entitled to receive sickness pay. It’s important to note that you’re not automatically entitled to full pay for absences caused by a pregnancy-related illness. 

It won’t be pregnancy and maternity discrimination or sex discrimination if you aren’t paid at your full rate. However, you should receive the same pay during pregnancy-related illness as you would for any other type of sick leave.

Example

You’re pregnant and have been off work since early in your pregnancy because of pregnancy complications. Your employer has a sickness absence policy that states you are allowed to take no more than 20 weeks of continuous absence leave. It adds that employees may be dismissed if they take more than this. 

This policy is applied regardless of sex. You take more than 20 weeks off because of your pregnancy-related illness and are dismissed. Your dismissal would be unfavourable treatment because of your pregnancy and would be unlawful under the Equality Act 2010 (EqA).

Discrimination Because You Are Taking Time Off Work for Ante-Natal Care

You’re entitled to take a reasonable period of time off work to attend appointments for ante-natal care. If your employer refuses or submits you to any detriment, this would be unlawful under the EqA and the Employment Rights Act 1996.

Example

A pregnant employee has booked time off to attend a medical appointment related to her pregnancy. Her employer insists this time must be made up, or her pay will be reduced to reflect the time off. This is unlawful: a pregnant employee is under no obligation to make up time taken off for antenatal appointments. Furthermore, an employer cannot refuse paid time off to attend such classes.

If you’re the partner of somebody pregnant, you don’t have an automatic right to time off work for ante-natal appointments. However, your employer may choose to allow you to take the time off for this purpose. Alternatively, you can take unpaid leave or part of your holiday entitlement to do so.

Discrimination Because You Are Undergoing IVF Treatment

If you’re subjected to a detriment or dismissed because you’re undergoing IVF, this may constitute sex discrimination, and you should seek expert advice. Any detrimental treatment or dismissal after the transfer of the egg through IVF may constitute pregnancy and maternity discrimination.

Speak to One of Our Expert Employment Solicitors About Your Case

If you think that you’ve been subjected to pregnancy discrimination in the workplace, call one of our expert employment solicitors. They can provide a free consultation and discuss your potential Employment Tribunal claim.

Applying for Jobs Whilst You Are Pregnant

You aren’t required to disclose your pregnancy to a prospective employer. Furthermore, it’s unlawful for an employer to refuse to hire you solely because of your pregnancy. If you inform a prospective employer of your pregnancy and are subsequently not offered the job, and you suspect this decision was due to your disclosure, it may constitute pregnancy discrimination.

This also applies if you inform your employer that you’re pregnant after you’ve been offered the job. The withdrawal of a job offer would constitute pregnancy discrimination.

Example

You apply for a job as a driving instructor and, on the strength of your CV and your interview, are offered the job. However, after you’ve accepted it, you inform your employer that you’re six weeks pregnant. 

Your employer then changes their mind and states your offer is being withdrawn because of a lack of suitable references. This is despite the fact you’re sure that your previous employers haven’t provided unfavourable ones. 

This would be pregnancy discrimination and cannot be justified by your employer. If this occurred, you could submit an Employment Tribunal claim.

Action You Can Take if You Think That You’re Being Discriminated Against

If you think you’re being discriminated against because you’re pregnant, you should take action swiftly. Below are some examples of what you can do:

• Inform your line manager that you believe you’re being discriminated against. Make sure that you put your complaint in writing and keep a copy so that you have evidence of it. Should it be your line manager who is discriminating against you, raise your complaint with another in a position of authority in your organisation.
• Raise a formal grievance with the HR department and keep a copy.
• Obtain specialist advice. This could be directly from a lawyer or via a Citizens Advice appointment.
• Collect evidence of any discriminatory incidents. If possible, it’s a good idea to keep a diary of all of the incidents of discrimination you have suffered. Record exactly who was involved and what happened, and try to obtain any witness evidence from colleagues. Try also to keep any other evidence you deem relevant, like letters or emails.

Making an Employment Tribunal Claim for Pregnancy and Maternity Discrimination

If you want to make an Employment Tribunal claim for pregnancy discrimination, you must do the following:

• Claim within three months of the last date of discrimination, referred to as the “limitation date”. This date can be challenging to pinpoint, so caution must be taken to ensure you don’t fall outside the period.
• Ensure that your employer was aware that you were pregnant (or that there are sufficient facts which mean that your employer should have been aware that you were pregnant).
• Gather enough evidence to allow you to prove your case in the Tribunal. This includes documentary evidence and, if applicable, witness evidence.

It’s important to note that pregnancy discrimination claims vary from others. Unlike unfair dismissal claims, you don’t need to have worked for your employer for a qualifying period to claim compensation. You have the right to do this from “day one”.

What Happens if You’re Victimised for Making a Complaint of Pregnancy Discrimination?

If you do any of the “protected acts” listed below and are subjected to any form of detriment or dismissal as a result, you may be able to make a claim for “victimisation” under the EqA. A protected act can include:

• Making or threatening to make an informal or formal complaint about pregnancy discrimination within your organisation.
• Making or threatening to make an Employment Tribunal claim for the same.
• Helping a colleague to make a complaint or helping them with their claim.

Employment Tribunal Cases Involving Pregnancy Discrimination

• Sisk v Department for Work and Pensions – an employee who had her position removed while on maternity leave won a claim for discrimination and was awarded £13,200 as compensation for injury to her feelings (Employment Tribunal judgment here, or read our analysis of the case)
• Freear v Vossloh Cogifer UK Ltd 1800747/2016 – an employee who was threatened with disciplinary after making her employer aware of the fact that she was pregnant won a claim for discrimination and was awarded £43,735.09 in compensation (Employment Tribunal judgment here, or read our analysis of the case)
• Onigbanjo v London Borough of Croydon 2301468/2016 –  the Employment Tribunal held that a failure to carry out a risk assessment had discriminated against the employee because she was pregnant (Employment Tribunal judgment here, or read our analysis of the case)
• Doyle v Associated Training Solutions Ltd 2405460/2016 – the Employment Tribunal held that a female employee’s dismissal was because of the fact that she was pregnant and that she intended to take a period of maternity leave (Employment Tribunal judgment here, or read our analysis of the case)
• Hale v Dentons UKMEA Legal Services ET/2200450/2017 – the Employment Tribunal held that a female employee who was selected for redundancy and dismissed was discriminated against, coming to the conclusion that she was selected because it would be easier to dismiss her (Read our analysis of the case)
• Ginger v Department for Work and Pensions 3401940/2015 – the Employment Tribunal held that the refusal to allow an employee to take a further period of time off work for IVF treatment constituted direct sex discrimination (Employment Tribunal judgment here, or read our analysis of the case)

Get Employment Law Help

If you have questions about pregnancy discrimination or believe your rights have been violated, contact us today. With years of experience, Redmans Solicitors are experts in employment law and can provide you with the specialist advice you need to resolve your issue.

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• Call 020 3397 3603
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