In this legal update, we provide a brief overview of the law surrounding pregnancy and maternity discrimination.
Pregnancy and maternity discrimination is unlawful
Pregnancy and maternity are characteristics that receive protection from discrimination by virtue of the Equality Act 2010. Pregnancy and maternity discrimination is a separate and distinct category of legal protection from sex discrimination.
The law on pregnancy and maternity discrimination does not require a comparator. Therefore, woman needs to show only that she has been suffered unfavourably because of her pregnancy or because of illness suffered as a result of it. Similarly a woman needs to show only that she has suffered unfavourably because she is taking or going to take maternity leave.
Automatic unfair dismissal
Pregnancy and maternity receive the additional protection of what is known as automatic unfair dismissal. The effect of this is that no minimum length of service with the employer is required for the woman to receive protection from dismissal as a result of her pregnancy. Additionally, when considering an automatic unfair dismissal complaint, an employment tribunal does not need to consider whether the employer acted reasonably.
Duration of protection period
The protection from pregnancy and maternity discrimination is limited to a specified period of time. It starts from pregnancy until the end of statutory maternity leave. Where a woman is not entitled to maternity leave, for example because she is a worker rather than an employee, the protection period ends at the end of two weeks compulsory maternity leave.
Outside the protection period, a woman who has recently given birth is still protected from less favourable treatment under sex discrimination laws. In such circumstances, however, a comparator is needed. The woman would, therefore, need to show that she was treated less favourably than a man.
Proving pregnancy and maternity discrimination
This is usually very much down to what evidence is available. Documentary or some other form of tangible evidence is generally more persuasive than oral evidence on its own.
What remedies are available if an employee or worker faces discrimination as a result of pregnancy and maternity?
The remedies of tribunal can award include compensation for injury to feelings and loss of earnings including loss of maternity pay.
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