Under the Equality Act, it is unlawful to treat someone unfavourably because they are pregnant, have a pregnancy-related illness, have recently given birth, are breastfeeding, or are taking or seeking to take maternity leave.
This article is provides information on pregnancy and maternity discrimination:
- What is pregnancy and maternity discrimination?
- What is unfavourable treatment?
- When am I protected?
- Discrimination on return to work
- What if I am not an employee?
- What to do if your employer discriminates against you
- Frequently asked questions
It is unlawful for your employer to treat you unfavourably because you are pregnant or on maternity leave. Pregnancy and maternity discrimination occur if you are treated unfavourably because:
- you are exercising or seeking to exercise, or have exercised or sought to exercise, the right to maternity leave; or
- of pregnancy or an illness suffered as a result of pregnancy.
What are some examples of pregnancy and maternity discrimination?
For example, you must not be treated unfavourably for:
- temporarily being unable to do your job because of pregnancy
- being unable to work as it would breach health and safety regulations
- bringing additional cost to the business
- absences due to pregnancy related illness
- not being able to attend a disciplinary hearing due to sickness or other pregnancy-related conditions
- having performance issues due to pregnancy-related conditions
Examples of pregnancy and maternity discrimination include dismissal, removal of responsibilities or seniority, a failure to offer a pay rise when you would have had one if you had been in work, or the refusal to promote or offer training because you are pregnant or have been on maternity leave.
Someone is treated unfavourably if they are not in as good a position as others generally would be – for instance, disadvantaging you, making something difficult for you to achieve, or creating a particular difficulty for you.
What are some examples of unfavourable treatment?
Examples of unfavourable treatment include:
- demoting you
- not considering you for promotion
- refusing you a pay rise or bonus
- dismissing you
- refusing to recruit you
- excluding you
- refusing to protect your health and safety where there are risks
- denying you training or promotion opportunities
- not permitting you to attend antenatal appointments
- changing or removing your job responsibilities (unless it is necessary for health and safety, you agree or it is to arrange maternity cover)
Unlike other types of discrimination, you do not have to compare your situation to someone else. It is enough to show that you have been treated unfavourably.
In order for it to be maternity or pregnancy discrimination, the unfavourable treatment must occur during what is called the ‘protected period’.
The protected period starts when you become pregnant and ends when your maternity leave ends, or if earlier, when you return to work, or you quit your job.
If you do not have the right to maternity leave, for example if you are an agency worker, the protected period ends two weeks after giving birth.
The protected period does not continue into a period of annual leave that you have used to delay your return date.
Discrimination outside the protected period
If a decision was taken during the protected period, but carried out afterwards it may still be maternity discrimination.
If the unfavourable treatment happened after your return from maternity leave, for example to demote you because you did not attend a training during maternity leave, you may still have a claim for sex discrimination.
If you are unsure whether you have suffered pregnant, maternity, or sex discrimination, please contact us for further advice.
Whether you have suffered discrimination is likely to depend on how much maternity leave you have taken. For more information on your right to return to work, see our article on: What happens when I return to work at the end of my maternity leave?
Breastfeeding on return to work
It is unlawful for your employer to treat you unfavourably because you are breastfeeding. Depending on the circumstances, this can be pregnancy, maternity or sex discrimination.
You are also entitled to protection from health and safety risks if you are breastfeeding on return to work. You should notify your employer in writing that you are breastfeeding and your employer should take reasonable action to remove any health and safety risks.
For more information, see our article on returning to work while breastfeeding.
Your rights at work may be different if you are not employed. If you are unsure of your employment status, see our article on employed, self employed or worker?
If you are an agency worker
Agency workers have some of the same rights as other workers, such as the right not to be discriminated against because of pregnancy. You should not be treated less favourably, or refused work, because:
- You are pregnant
- You have given birth in the last two weeks if you are not entitled to maternity leave
- You have given birth in the past year if you are entitled to maternity leave
- You have tried to assert one of your legal rights, such as the right to Statutory Maternity Pay
Both the agency you work for and the company where you are working with are under a duty not to discriminate against you. However, in order to be able to claim discrimination, you will have to tell your recruitment agency and the company you are working for about your pregnancy.
See our section on agency workers for further information.
If you are self-employed or freelance
Under the Equality Act, the right not to suffer discrimination because of pregnancy or maternity includes self-employed ‘workers’ if you have a contract to personally to carry out work. This is likely to include freelancers. The right not to suffer discrimination because of a pregnancy or maternity applies from day one.
If you are not offered work or if your contract is terminated because you are pregnant or have taken time off to have a child, you may have a pregnancy or maternity discrimination claim.
However, bear in mind that the discrimination must occur within the ‘protected period’ for you to be able to make a claim for pregnancy/maternity discrimination (see section above on ‘When am I protected’?).
If you are unsure, contact us for advice.
If you believe your employer has treated you unfairly, you can consider taking the following steps. You can also contact us for advice.
Try to resolve the issue
Speak to your employer in the first instance and try to resolve things informally. Try to keep communications friendly if you can. It can sometimes be more effective if you focus on solutions and the way forward, rather than the things you are unhappy about.
Often, employers can become defensive if accused of discrimination, but you can say if think you are being treated unfairly because of your pregnancy or maternity leave.
Raise a grievance
If the discussions with your employer don’t resolve the issue, or you think your employer has treated you very unfairly and the relationship is breaking down, you can consider raising a grievance. You can find more information in our article on Grievances.
Raising a grievance is important if you think you might later raise a claim in the Employment Tribunal because failure to follow internal resolution methods can disadvantage your claim.
It is advisable to try and resolve things amicably, as formal processes can damage your relationship with your employer. For some legal insight into grievances and tips on how to engage with your employer before it reaches this point, see our article on Grievances do more harm than good.
Your employer should not ignore your grievance, fail to hear it within a reasonable time or reject it out of hand (as doing so could amount to a breach of your employment contract). However, your employer is not obliged to uphold your complaint.
If you are unhappy with the outcome of your grievance, you should normally be able to appeal it; the procedure will be set out in your employer’s grievance policy. If you are unhappy with the outcome of the appeal process, you can contact us for advice.
Make a claim in the Employment Tribunal
If the above steps do not resolve the matter you could bring a claim in the employment tribunal.
Proving discrimination claims can be difficult: the discrimination is rarely made explicit. Most employers will not actually say: ‘The reason why I’m dismissing you is because you’re pregnant’. So it is necessary to produce evidence to prove the real reason for the unfavourable treatment so that the Tribunal can infer from the facts what really happened.
The Tribunal will follow a two stage ‘burden of proof’ test. Firstly, they decide whether you have provided sufficient proof that an act of unlawful discrimination has taken place. Then, the burden of proof will shift to your employer to provide a non-discriminatory explanation for their actions.
See our section on starting a claim for further information and beware of time limits. You must contact ACAS to start early conciliation within three months less a day of the act of discrimination, or within three months of your termination date for unfair dismissal.
Tribunal claims can be expensive and long, and there is no guarantee of success, so this step should be considered cautiously. It is often best to try to resolve the issue with your employer.
If you are considering bringing a claim, you can contact us for advice.
Frequently asked questions
What if my employer doesn’t know I’m pregnant
If your employer does not know that you are pregnant you cannot be a victim of pregnancy discrimination.
However, if your employer believes or suspects that you are pregnant, even if that is through rumour, they could be treating you unfavourably because of your pregnancy or an illness suffered as a result of your pregnancy.
Can I be refused a job because I am pregnant?
No. If you are refused a job because you are pregnant this would be pregnancy discrimination.
If my partner is being treated badly by their employer, can they claim pregnancy or maternity discrimination?
It is likely that only pregnant women can claim pregnancy or maternity discrimination. However, your partner may have a claim for direct sex discrimination, pregnancy or maternity discrimination by association or unfair dismissal.
Can I request time off for antenatal appointments?
Yes. Pregnant employees (and agency workers who have met certain service requirements) have a statutory right to paid time off during working hours for the purposes of receiving antenatal care, regardless of hours worked or length of service.
Your employer may request proof of appointment which you must provide, although they cannot ask for proof of your first appointment.
Failure to allow time off for antenatal appointments may be pregnancy and maternity discrimination. See our section on time off for antenatal appointments for more information.
I’m pregnant or breastfeeding; should my employer do a health and safety assessment?
Employers are obliged to assess health and safety risks to which their employees might be exposed while at work. If they employ women of child-bearing age and the type of work could involve a risk to the health and safety of a new or expectant mother or her baby, they must include a specific assessment of those risks in the overall assessment.
You should tell your employer that you are pregnant or breastfeeding and, if there is any evidence of a risk to you or your baby, an individual risk assessment should be carried out. If a risk is revealed, your employer must do all that is reasonable to remove or prevent it. If your employer cannot resolve the risk they must look for suitable alternative employment for you, at the same pay and conditions. If there is no way you can work safely, you are entitled to be suspended on full pay.
Failure to undertake a risk assessment or act on findings may constitute pregnancy and maternity discrimination. See our sections on health and safety rights for pregnant women and for new and breastfeeding mothers.
Can I be dismissed during pregnancy or maternity leave?
It can be legal to dismiss you during pregnancy or maternity leave – the normal rules of dismissal apply. The dismissal must not in any way be related to your pregnancy or maternity leave. A dismissal because of pregnancy, pregnancy-related sickness, birth or maternity leave is an automatic unfair dismissal and discrimination.
If you are dismissed while pregnant (or on maternity leave) you must be given written reasons for the dismissal. You are entitled to be paid for any outstanding holiday pay that has accrued during your maternity leave up to the end of your notice period.
See our section on dismissal during pregnancy, maternity leave or soon after for more information.
Can I be made redundant during pregnancy or maternity leave?
Yes. However, women on maternity leave have priority for alternative employment in redundancy cases.
Unlike women on maternity leave, pregnant women who have not yet started maternity leave have no priority for alternative employment.
However, the redundancy selection criteria must not take into account reasons connected to pregnancy (including pregnancy-related illness) or maternity leave. If you believe you have been selected for redundancy because you are pregnant or have a pregnancy-related illness, you may have a claim for pregnancy and maternity discrimination.
See our section on redundancy while on or shortly after maternity leave for more information.
Can my employer contact me during my maternity leave?
Your employer may make “reasonable contact” from time to time during your maternity leave. This contact may be used, for example, to enable you to discuss arrangements for your return to work or to keep you informed of important developments at work.
What is reasonable will depend on the circumstances, including your views on how you would like to be contacted and when.
If you feel your employer is making an unreasonable amount of contact during maternity leave, or requesting that you work during maternity leave, we recommend that you tell your employer and try to agree on an amount of contact that you find more reasonable.
You can also propose what work you would be willing to do on a ‘Keeping in Touch’ (KIT) basis.
Does my employer need to keep me updated while on maternity leave?
It is good practice for your employer to keep you updated while you are on maternity leave. If you feel your employer is not making reasonable contact during maternity leave and you are treated unfavourably because of this (for instance, your employer is not keeping you aware of promotion opportunities), you may have a claim for pregnancy and maternity discrimination.
You should be informed of any promotion opportunities or vacancies which arise during maternity leave. In a case called Visa International Service Association PLC v Paul, an employee was successful in her claim that her employer had discriminated against her on grounds of pregnancy and maternity because she was on maternity leave when they failed to inform her of a vacancy that she would have wished to apply for.
It is a good idea to talk to your employer in advance about how much contact you would like to have with them during your maternity leave.
I should be given a pay rise, but my employer won’t give it to me because I’m on maternity leave
If your employer does not award you a pay rise that you would have received because you are on maternity leave, this may be pregnancy and maternity discrimination.
A woman on maternity leave should receive a pay rise like any other worker. To deny an increase to a woman on maternity leave would discriminate against her if, had she not been pregnant or on maternity leave, she would have received the pay rise.
For more on the effect of pay rises on maternity pay, see our article on rights during maternity leave.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.