Pregnancy and Maternity Discrimination in the Workplace

A report from the Women and Equalities Select Committee has called for an increase in protection for pregnant women and new mothers to tackle increased pregnancy and maternity discrimination in the workplace.

The report highlighted an increase in the number of women who had lost their job because of pregnancy discrimination from 30,000 in 2005 to 54,000 in 2015. The Department for Business, Innovation and Skills has also reported that one in five mothers had experienced harassment and negative remarks related to pregnancy; a further one in ten reported that they had experienced such poor treatment that they felt they had to leave their jobs.

Pregnancy and maternity are protected characteristics under the Equality Act 2010. It is unlawful discrimination to treat a pregnant woman or a new mother unfavourably because they are pregnant, because of any pregnancy related illness, or because they have exercised the right to maternity leave.

Unfavourable treatment might include denying promotion or training opportunities or demotion, taking into account pregnancy related illness when making decisions, or dismissal. Damages are uncapped in such cases. In 2010 an investment banker at Credit Suisse received £1.5 million in compensation after being made redundant following her return to work from maternity leave and in 2012 a former doctor from Mid Yorkshire Hospitals NHS Trust, who had been subjected to unfavourable treatment from her colleagues on her return from maternity leave, was awarded over £4 million in compensation by an employment tribunal.

Redundancy situations involving employees who are on maternity leave can be especially difficult for employers. If their role is made redundant, employees who are on maternity leave are entitled to any suitable alternative roles which are available as of right.

Pregnant employees or new mothers are not however exempt from being selected for redundancy when there is a genuine redundancy situation and there is no suitable alternative position available. In Eversheds Legal Services Ltd v de Belin [2011] the EAT ruled that to treat a woman on maternity leave more favourably than other employees amounts to unlawful sex discrimination against male employees.

The Select Committee report also considered proposals for only allowing employers to make pregnant women and new mothers redundant when those employers are facing “severe financial difficulties”. The report has described how “70% of employers thought that women should declare during the recruitment process if they were pregnant, and a quarter of employers felt it was reasonable during recruitment to ask women about their plans to have children”. Interviewers should not be tempted to ask personal questions to potential employees as asking for certain information is unlawful. If a prospective employee willingly discloses personal information during the course of the interview process, the panel involved in the selection process should take particular care not to allow themselves to be influenced by that information. The Equality Act 2010 protects employees during the course of employment as well as prospective employees from the initial job advertisement to interview stage.

In order to prevent pregnancy and maternity discrimination in the workplace, employers should offer regular training to all staff on equality and diversity. This can help reduce or prevent liability for employers where employees have acted in a discriminatory fashion.  It will also help show that as an employer you have taken all reasonable steps to prevent discrimination.

Dominic Bonham