Section 18 of the Equality Act 2010 concerns maternity and pregnancy discrimination. It prohibits an employer from discriminating against a woman during her pregnancy or whilst she is on maternity leave.
It means that an employer must not treat a woman differently because she is pregnant, has an illness related to her pregnancy, or is on maternity leave. Protection afforded by the act begins at the start of pregnancy and ends when a woman returns to work after maternity leave.
Pregnancy Discrimination constitutes Automatic Unfair Dismissal
Dismissing a woman or selecting her for redundancy for a reason connected with her pregnancy is deemed by the law to be automatically unfair. This constitutes an act of pregnancy discrimination, also known as maternity discrimination.
This covers instances such as selecting someone for redundancy on the basis of their pregnancy because an employer believes that she is unlikely to return from maternity leave anyway.
Asserting a Statutory Right
Taking time off for antenatal care and maternity leave are statutory (legal) rights. Employees are protected from unfavourable treatment once they have asserted a statutory right. That means that if an employee is treated differently by an employer having taken what she is legally entitled to then she may make a complaint to an employment tribunal.
Under the Employment Rights Act 1996 (ERA) pregnant women have
- the right to paid time off to attend antenatal care appointments during working hours
- the right not to be unreasonably refused time off to attend antenatal care appointments
An employer is entitled to request a certificate confirming that an employee is pregnant and an appointment card or similar showing that she does have an appointment.
Fathers and partners of pregnant women are entitled to time off to attend two antenatal appointments. Unpaid time off is capped at six and a half hours per appointment.
In general, appointments that are not directly related to health would not be considered antenatal care for the purposes of paid time off. Which means an employee is unlikely to be entitled to attend NCT classes, massage, relaxation, yoga or similar appointments during working hours.
Women undergoing fertility treatment and IVF are unfortunately not covered by maternity law and as such are not entitled to paid time off for medical appointments until they are pregnant.
Calculating antenatal care pay for the time taken to attend antenatal appointments includes the time spent travelling to appointments. Employees who are not paid a fixed salary should ascertain the appropriate hourly rate by dividing a week’s pay by the number, or average number, of normal working hours in a week.
What to do if you are refused time off
If an employer unreasonably refuses time off for antenatal appointments you may present a claim to an employment tribunal. Any complaint about refused time off must be presented to a tribunal within three months of the refusal.
All women are entitled to maternity leave regardless of their length of service. In fact, all women are required to take two compulsory weeks maternity leave after the birth of their child.
Women are entitled to 26 weeks ordinary maternity leave and a further 26 weeks additional maternity leave.
Health and Safety
Employers must carefully consider the health and safety of employees who are pregnant, breast-feeding or who have recently given birth. A risk assessment must be done to consider physical, biological and chemical risk and steps taken to remove those risks even if that means altering working conditions.
If an employer does not undertake a risk assessment, this in itself constitutes maternity discrimination and means that you would be able to make a claim in the employment tribunal.
Research into the increased risk of miscarriage faced by night-shift workers may mean that pregnant women should not work during the night, although this is still to be tested in courts. In any event a certificate from a medical professional advising that a woman must not work at night or must not suffer from excessive stress must be adhered to by an employer.
If an employer identifies that a pregnant woman is exposed to risk in her current role then steps must be taken to remove that risk.
If working conditions cannot be changed then alternative employment should be found within the organisation or failing that the woman should be suspended in order to avoid the risk. Under Section 68 of the Employment Rights Act 1996 a woman should be kept on full pay whilst she is suspended.
Employers should provide a health and safety risk assessment with respect to breastfeeding mothers at work. In addition, the Health and Safety Executive advises that suitable facilities should be provided for breastfeeding and expressing milk. These should be private, healthy and safe. Provision also needs to be made for the safe storage of expressed breast milk. There is however no legal right to time off to breastfeed or express milk and no actual legislation requiring facilities to be provided.
Help and information
If you have been refused time off to attend antenatal appointments or not paid whilst attending those appointments or if you have suffered any form of pregnancy discrimination you can call our legal helpline for free advice on 0800 756 6605 or 020 3923 4777.
Alternatively, you can submit your details via our quick and simple enquiry form for review and feedback. If you need to speak with an employment lawyer urgently you can make a Talk to Tom priority appointment.
We can also assist you in bringing a claim if you are have been treated less favourably or selected for redundancy because you are pregnant.