September 19, 2016

A growing problem: maternity discrimination on the increase

Maternity discrimination is becoming a bigger and bigger concern, according to an inquiry by the Parliamentary Women and Equalities Committee.

The committee has warned of a growing problem of new and expectant mothers being treated unfairly at work, while Citizens Advice has announced a 58 per cent rise in the number of maternity-related problems it has dealt with in the last two years.

And a £7.5m breach of contract claim against Sports Direct, brought by 200 of the company’s employees (that revealed women were routinely moved onto zero hours contracts when they returned from maternity leave, excluding them from a generous bonus scheme), is just one of many stories putting maternity discrimination in the mainstream media.

For employers, discrimination in the workplace isn’t just costly in terms of financial pay outs – it could also ruin the business’s reputation.

The law – protection against maternity discrimination

Women are protected against discrimination on the grounds of pregnancy and maternity under the Equality Act 2010. Any woman who is treated differently or unfairly during the period of her pregnancy (or a pregnancy-related illness), maternity leave, recently after giving birth or while breastfeeding could make a claim for discrimination.

There is no qualifying employment period required for pregnancy or maternity discrimination claims, and there are no limits on the amount of compensation that may be ordered.

Discrimination because of pregnancy or maternity is automatic discrimination: there’s no requirement for a woman to show she has been treated less favourably than a man or a woman who was not pregnant.

As an employer, it’s vital that you know the legal issues, rights and responsibilities regarding pregnancy and maternity, or you could be subjected to a costly claim.

Women’s rights during pregnancy and maternity leave

Every woman has the right to health and safety protection for themselves and their baby and the right to reasonable paid time off for antenatal care. They should also be protected against unfair treatment and unfair dismissal for reasons related to their pregnancy.

All employees have the right to up to 52 weeks statutory maternity leave, with the right to return to work at its conclusion. Statutory maternity leave includes ordinary maternity leave (the first 26 weeks) and additional maternity leave of a further 26 weeks.

All employees have the right to return to the same job on the same terms and conditions if returning to work after the period of ordinary maternity leave. Those who choose to take additional maternity leave have the right to return to the same or other suitable job with the same or better terms and conditions.

They also have the right to make a request for flexible working.

Entitlement to all contractual terms and conditions during maternity leave remains the same, apart from pay – for example, holiday accrual, payment of pension contributions, use of a company car or private healthcare.

If women are made redundant during maternity leave, they have the right to be offered a suitable alternative vacancy, and they are protected from unfair treatment, unfair dismissal and discrimination because of pregnancy, childbirth and maternity leave.

How employers get it wrong – common maternity discriminiation practices

Some employers may view an employee’s pregnancy as a huge cost to their organisation in terms of covering their absence, but any attempt to change entitlement to contractual terms and conditions can land them in legal hot water.

Unfortunately, discrimination against women for reasons of pregnancy or maternity remains widespread, as the Women and Equalities Committee’s report has shown.

Attempting to engage in any of these common discriminatory practices can have significant consequences for any employer, not to mention a devastating effect on the employee:

  • cutting working hours and/or pay
  • selection for redundancy because of changes to the employees job during their absence on maternity leave
  • failing to consult with the employee regarding changes or redundancy during maternity leave
  • putting employees onto zero hour contracts
  • denying training or promotion opportunities
  • pressurising the employee to return to work early from maternity leave
  • not paying maternity pay
  • dismissal because of pregnancy
  • pressure to resign
  • demotion on return to work
  • not carrying out risk assessments when there are health and safety risks
  • changes in the attitudes of colleagues and management leading to verbal harassment

What this means for employers

A responsible employer should treat all staff fairly, consistently and without discrimination.

It’s the employer’s responsibility to ensure all managers are aware of the legislation regarding pregnancy and maternity. If they don’t, these discriminatory cost-cutting measures could have major long-term financial impact.

To find out more about rights and responsibilities during pregnancy and maternity, contact the team or call 0845 184 4615.

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About the author

Louise Gillibrand

Louise is a generalist Human Resource professional with over 18 years’ experience across a variety of sectors including care, medical, retail and telecommunications, and is a member of the Chartered Institute of Personnel and Development. Louise provides sound practical and business-focused advice in line with employment legislation and best practice, and has worked in partnership with line managers, senior operational managers and directors. Typical consultancy projects include advice on complex employee relations issues, redundancy programmes, restructures, TUPE, recruitment, policy writing and grievance/disciplinary handling. In addition to her generalist knowledge she is experienced in delivering training on a wide variety of employment law and HR subjects. Louise joined the Moorepay consultancy team in October 2007.