Pregnancy Test: Is your employer positive or negative?

New research from the campaign groups Pregnant Then Screwed and Women In Data suggests that up to 74,000 women lose their jobs every year due to pregnancy or taking maternity leave, a figure that is almost 40% higher than a decade ago. 

As an employment lawyer, these figures are sadly unsurprising to me. I receive multiple enquiries from women who have experienced pregnancy discrimination, but I am shocked that some employers still have little or no regard for pregnancy and maternity discrimination laws. 

“Pregnancy and maternity” is a protected characteristic under the Equality Act 2010, meaning if an employer discriminates against a woman for being pregnant or for taking maternity leave, they risk legal consequences.  

Discrimination here means treating the woman unfavourably, or disadvantaging her because she is pregnant or on maternity leave. It relates to the period from when a woman’s pregnancy begins, to either the end of her maternity leave, the date she returns to work after the pregnancy, or two weeks from the end of her pregnancy. This is known as the ‘protected period’ and the end date may differ depending on individual circumstances.  

What makes pregnancy and maternity discrimination different from other forms of discrimination is that when it occurs during the protected period, the woman does not need to show she has been treated less favourably than a comparator (a person with similar circumstances used for comparison e.g. a man), which often makes it more straightforward to prove.  

This is because the legal test is that the woman has been treated ‘unfavourably’ rather than ‘less favourably’ (which is the test for other forms of discrimination). For any differences in treatment, when compared to a male comparator, after the protected period, there may be a possible claim for sex discrimination. 

Whilst pregnancy and maternity discrimination can cover a number of factual scenarios, the most common complaint I see is selection for redundancy. This is particularly tough - having to fight for your job often affects the joy of being pregnant or makes returning to work as new mum even harder than it already is.  

Women who are pregnant or on maternity leave have enhanced protections in this type of scenario. Whilst redundancy can sometimes be justified in these circumstances and may not be entirely avoidable, where possible during her protected period, a woman should be given an appropriate alternative vacancy as a priority. If she is selected for redundancy because she is pregnant or on maternity leave, it is likely to be an automatically unfair and discriminatory. 

When to seek legal advice 

If you are within your protected period or are navigating a return to work following maternity leave, and believe you are being treated unfavourably or have been disadvantaged in the workplace due to pregnancy or maternity leave, you should seek legal advice as soon as possible. With most employment law related issues, there are short time frames, but finding out what your rights are is the first step towards ensuring they are protected.  

If you are affected by the issues discussed in this blog and would like to seek legal advice, please do not hesitate to reach out to our team of specialist employment and discrimination lawyers at Leigh Day Discrimination at Work Claims.