Under the Equality Act, it is unlawful to treat someone unfairly 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
For answers to common questions see our FAQ page: Pregnancy and Maternity Discrimination: Frequently Asked Questions.
For more information on your rights during maternity leave and on returning to work, see our other advice pages:
- Your rights as an employee during maternity leave
- What happens when I return to work at the end of my maternity leave?
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
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 an 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-related discrimination include dismissal, removal of your 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 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. Examples of unfavourable treatment include:
not considering you for promotion
refusing you a pay rise or bonus
refusing to recruit 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 direct discrimination, you do not have to compare your situation to someone else’s. It is enough to show that you have been treated unfavourably.
In order for it to be considered maternity or pregnancy discrimination, the unfavourable treatment must occur during what is called the ‘protected period’.
The protected period against discrimination starts when you become pregnant
If you have a right to maternity leave, the protected period 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
To see whether you would have a right to maternity leave visit our article on maternity leave.
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 the protected period has expired but you think you have been treated less favourably because of your pregnancy or maternity leave, this may still. amount to sex discrimination, depending on the circumstances.
For example, if a decision was taken (for example, to dismiss you because you have taken maternity leave) 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?
If you have taken 26 weeks of maternity leave or less
If you return to work during or after Ordinary Maternity Leave (the first 26 weeks of maternity leave), you are entitled to return to same job on the same terms and conditions.
If you are not allowed to return or you are not given your old job back you may have a claim for unfair dismissal and maternity discrimination.
If your old job has changed for the worse, you may have a claim for detrimental treatment or you may be able to resign and claim constructive dismissal. However, you should contact us for advice before you resign as these are difficult claims to bring.
If you have taken more than 26 weeks of maternity leave
If you have taken Additional Maternity Leave (any part of the second 26 weeks of maternity leave), you are entitled to return to the same job.
However, if your employer can show that it is not reasonably practicable for you to return to the same job, you are entitled to be offered a suitable alternative job on similar terms and conditions.
Your employer must prove that it is not reasonably practicable for you to return to your old job, which in practice is difficult to do. For example, it is likely to be unfair dismissal and maternity discrimination if your maternity cover is hired permanently in your role or has taken over some of your responsibilities and you are offered a different job instead.
The effect of reorganisation or redundancy
You may have a claim for maternity discrimination if changes to your job were made because you were absent on maternity leave. For instance, it may be discrimination if you were not consulted about changes to your job that were made because of redundancy or a reorganisation.
If a reorganisation has resulted in minor changes to your work, it may still be considered the same job. If your job has changed significantly or is less favourable in terms of salary, status, job security, location or hours you may have a claim for detrimental treatment, unfair dismissal and discrimination.
If are selected for redundancy at any point during your maternity leave, you are entitled to be offered a suitable alternative vacancy if one is available. You would have priority over other employees who are also at risk of redundancy. If your employer does not comply with this requirement, you may have a claim for automatically unfair dismissal.
For more information see our article on Redundancy while pregnant, or on maternity, adoption or shared parental leave.
Changing your hours on return to work
Many women would like to change their hours when they return to work after maternity leave. If you want to change your hours, days or place of work after maternity leave, e.g. to go part-time or to work from home, you should make an application for flexible work. See our article on How do I ask to change my working hours?
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 pregnant, 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.
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.