This article focuses on the issues faced by employers when employees have, or allege that they have, been discriminated against on the grounds of “pregnancy and maternity”, being one of the nine protected characteristics under the Equality Act 2017 (the “Act”). Whilst the legal rights and ways in which the equality laws operate are generally consistent across the characteristics, the protection specifically provided for pregnancy and maternity differs in several aspects, as discussed below.
…but first, how is “pregnancy and maternity” defined?
Whilst there is no express definition of pregnancy and maternity under the Act, it does refer to “a woman” in relation to “a pregnancy of hers”. The Act further defines a woman as a “female of any age”. The Act does not specifically refer to the biological definition of a man or a woman which gives rise to some uncertainty as to the extent of the protections available to employees when considering, for example, a trans man who becomes pregnant. See our recent article [Equality Series: Sex Discrimination] for further discussion on this.
The Act distinguishes between non-work cases and work cases. In a work context, the Act provides that is unlawful to treat a woman unfairly, during the “protected period” because:
- of her pregnancy;
- of an illness related to her pregnancy, including related time off; or because
- she is on compulsory maternity, or she seeks to exercise or has exercised the right to take ordinary or additional maternity leave.
The “protected period” starts from when the woman becomes pregnant and ends when she returns to work after the pregnancy, either at the end of ordinary maternity leave, additional maternity leave, or if she is not entitled to ordinary or additional maternity leave, at the end of the two-week compulsory maternity leave.
In deciding whether a woman has been discriminated against because of pregnancy or maternity, the test is whether she has been treated unfavourably, rather than less favourably, and there is no need for a comparator. However, identifying a comparator may nevertheless be useful to determine whether the treatment complained of was in fact because of the employee’s pregnancy or maternity leave.
When determining whether any discrimination has arisen, it may also be helpful (but not always determinative) to apply a “but for” test, i.e. but for the fact that a woman is pregnant or taking maternity leave, would she have suffered the unfavourable treatment?
Potential issues in relation to pregnancy and maternity related discrimination
In order to discriminate against a woman because of her pregnancy, the alleged discriminator must have knowledge of the pregnancy.
- Recruitment: a job applicant does not have to tell a prospective employer that she is pregnant during the recruitment process and employers should avoid asking whether an applicant is pregnant or planning to have children.
- Promotion: an employer must not discriminate against an employee because she is pregnant or on maternity leave with regard to promotional opportunities, i.e. it would be discriminatory not to tell an employee about a suitable job vacancy, turn down an application, discourage an employee for applying for a promotion or not promote an employee because she is pregnant or on maternity leave.
- Health and safety: all employers are under a duty to assess workplace risks and consider any reasonable adjustments to the employee’s working conditions to avoid any significant risk to the health and safety of new or expectant mothers in the workplace.
- Antenatal appointments: employees who are pregnant are entitled to paid time off to attend antenatal appointments. Refusal to allow an employee time off, and any detriment to which the employee is subjected as a result of taking time off without permission, may result in a complaint being made to the Isle of Man Employment and Equality Tribunal. The Employment (Amendment) Bill 2023 which is currently making its way through Tynwald seeks to introduce the right to paid time off for partners accompanying an expectant mother to antenatal appointments.
- Training and development: employers must ensure that women on maternity leave are kept informed of any training and development opportunities, jobs that become available, including any promotions or transfers, and allow them to apply.
- Poor performance or conduct issues: an employer should not take any disciplinary action against (and should be careful in performance managing) a pregnant employee where the reason for her poor performance could be due to her pregnancy, for example, absences arising from pregnancy-related illness. However, although an employee has additional legal protection whilst pregnant or on maternity leave, it is not absolute. An employer is still entitled to raise performance and/or disciplinary issues with an employee during the protected period if these issues arise before or during her pregnancy or maternity leave, or if the reason for her poor performance or conduct is unrelated to her pregnancy. In such cases, employers should act promptly but consider any reasonable adjustments which may be necessary.
- Redundancy: an employer should take care that the redundancy selection criteria it uses does not discriminate against employees who are, or who have been, pregnant or on maternity leave. Likewise, an employee on ordinary or additional maternity leave is entitled to be offered any suitable vacancy with the employer.
That said, employers should avoid favouring a woman who is pregnant or on maternity leave in a redundancy scoring exercise where it could be considered disproportionate. A UK Employment Appeal Tribunal[1] found that the obligation to protect employees who are pregnant or on maternity leave cannot extend to favouring such employees beyond what is ‘reasonably necessary to compensate them for the disadvantages occasioned by their condition’. Where a maternity or pregnancy benefit is disproportionate, a disadvantaged male colleague may claim sex discrimination.
- Dismissal: it is discriminatory and automatically unfair to dismiss a woman because she is pregnant or because of any reason linked to her pregnancy, such as pregnancy-related illness. An employer can dismiss a pregnant employee, but it must be able to demonstrate that such dismissal was for a fair reason unconnected with the pregnancy and that a fair procedure had been followed. An employer must also provide written reasons for the dismissal, regardless of the length of service.
Special treatment
Despite our comments about redundancy above, there are some situations in which the Act provides that “special treatment afforded to a woman in connection with pregnancy, childbirth or maternity” must be disregarded for the purposes of direct sex discrimination. Where this applies, a man cannot claim that he has suffered sex discrimination because he has not been accorded the same special treatment.
A common example is a man who is given a warning for being repeatedly late for work and who complains that he has been treated less favourably than a woman who has also been repeatedly late but who was not given a warning. The man cannot compare himself to the pregnant woman if the reason for her lateness is related to her morning sickness. The correct comparator in this case would be a non-pregnant woman who was also late for work.
Situations in which pregnancy and maternity discrimination may be lawful
- Indirect discrimination – applies to all of the other protected characteristics but not pregnancy and maternity, ie an employer that operates a working practice, policy or rule which is applied equally to all staff but could put a woman who is pregnant or on maternity leave at a disadvantage cannot be held accountable for indirect discrimination on the basis of pregnancy and maternity. Even so, employees may be able to claim indirect sex discrimination in such situations, so employers should be mindful of this when implementing new policies and applying existing rules and procedures etc.
- “Equality Clause” – contractual pay – a pregnant employee is not entitled to benefit from contractual terms relating to remuneration, i.e. no entitlement to salary during maternity leave. Likewise, a woman cannot claim equal pay with a man at work whilst on maternity leave, since she is in a special position which cannot be compared to that of a man. However, the Act inserts a “maternity equality clause” into a woman’s contract which provides that any pay increase she receives (or would have received, had she not been on leave) must be taken into account when calculating her maternity-related pay. This also applies to any bonus to which she is entitled which must be paid at the time she would have received it had she not been on maternity leave.
- Insurance – an employer may provide annuities, life assurance policies etc. to employees, which involves the assessment of risk. An employer is permitted to provide for payment of premiums or benefits that differ for (including but not limited to) men, women, those who are pregnant or on maternity leave and those who have undergone gender reassignment so far as is reasonable in the light of actuarial or other reliable data.
Interestingly, a survey carried out by the Equality and Human Rights Commission in June 2017 found that potential claims of pregnancy and maternity related discrimination tend more readily than other types of claim to settle. Therefore, the extent of the problem and employees’ experience in practice is not necessarily reflected in the tribunal statistics.
The next article in our equality series will consider the protected characteristic of disability.
[1] Eversheds Legal Services Ltd v De Belin [2011] UK EAT/0352/10
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
