Despite anti-discrimination legislation being in place, the Department of Business, Innovation and Skills (BIS) has stated that 54,000 pregnant women and new mothers are losing their jobs each year.
The Equality Act 2010 prohibits discrimination because of pregnancy and maternity. In particular, it is unlawful to discriminate, or treat employees less favourably because of their pregnancy, or because that have given birth recently, are breastfeeding or on maternity leave.
Despite this, 11% of the women surveyed by BIS reported having been dismissed, made compulsorily redundant or treated so poorly that they felt forced out of their work place because of their pregnancy or maternity.
Helpfully, ACAS has published new guidance on pregnancy and maternity discrimination, intended to help employers identify and fulfil their obligations to their pregnant employees or those employees on maternity leave. The guidance also ensures that employees are aware of their legal rights.
The ACAS Guidance
The new guidance sets out circumstances in which a pregnant employee or a new mother may suffer unlawful discrimination because of their protected characteristic, and may bring certain claims within the Employment Tribunal, including:
Direct Discrimination: which would occur when an employee is treated less favourably due to her pregnancy, maternity leave or any pregnancy-related illness. There is no need for the woman to provide a comparator to show that she was treated less favourably than an employee who is not pregnant or on maternity leave.
Unlawful direct discrimination because of maternity may also occur in relation to breastfeeding, for example, where a woman is treated less favourably due to her breastfeeding her child.
Victimisation: such a claim would involve an employer treating an employee less favourably than others due to that employee having done or proposing to do a 'protected act'. A protected act would include bringing a discrimination claim, raising a grievance complaining of discrimination, or becoming involved with another employee's discrimination complaint about pregnancy, maternity or breastfeeding.
The ACAS guidance suggests that to combat this, employers should ensure that they have policies and procedures in place which are designed to prevent discrimination in all areas of the business, from recruitment to redundancy.
Unfair dismissal for redundancy: while pregnant women and woman on maternity leave can lawfully be made redundant this is only where a genuine redundancy situation exists, and where there is no suitable alternative work available for them on their return. A woman on maternity leave has the right to return to the same job she left. Where this is not possible but a suitable alternative position exists that position must be offered to the woman on maternity leave without the need for her to apply for it or go through any selection process. Any selection for redundancy based on an employee being pregnant or on maternity leave (or a related maternity reason), or a failure to consult with the employee whilst she is on maternity leave will amount to both unlawful discrimination and an unfair dismissal.
Although a complaint regarding and employer's treatment of an employee due to her breastfeeding would form part of a claim for direct discrimination, there is currently no legal right for women to have time off to breast feed, or any legislation which requires employers to provide specific facilities for employees to express milk. The Health and Safety Executive suggest that employers should nevertheless provide somewhere suitable for employees to express milk, and confirms that staff toilets are not suitable for this.
Employers should therefore consider their general practices (and available facilities) in this area and also ensure that their maternity policies (and other family friendly policies) are up to date.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.