What is maternity leave discrimination?
Section 18 of the Equality Act 2010 states that a woman should not be treated less favourably because of her pregnancy or for absence during her maternity leave.
For a woman to prove maternity leave discrimination in the workplace, she must provide evidence to suggest that, if it wasn’t for her pregnancy or maternity leave, she would not have been dismissed, made redundant or treated less favourably than other employees within the organisation, be it men or women.
Who does it apply to?
This law protects all pregnant women and those on maternity leave from the moment they inform their employer they are pregnant to when they return to work following maternity leave.
All workers, including, full and part time employees, contractors, agency workers and freelancers are protected by this law and should not be subjected to maternity leave discrimination.
If a woman is dismissed or made redundant as a result of their pregnancy or maternity leave, this would constitute an automatic unfair dismissal and applies to all individuals regardless of their length of service or status.
What constitutes less favourable treatment?
As a worker in the UK, you have certain maternity rights at work. If these are not adhered to by your employer then you can consider this as less favourable treatment and potentially maternity leave discrimination.
There are also several other factors which would constitute less favourable treatment during maternity leave. Please see the following examples:
- if you are selected for redundancy or are dismissed during maternity leave due to changes in your job role whilst you are on maternity leave;
- the employers failure to consult with you prior to redundancy or dismissal;
- if you employer refuses to put you forward for training or promotion opportunities;
- if your employer puts pressure on you to resign whilst you are on maternity leave;
- if your employer demotes you whilst you are on maternity leave.
What happens if you are dismissed during your maternity leave?
If you are dismissed during your maternity leave, it may potentially constitute maternity leave discrimination.
In most cases the employer will not admit that the reason for the dismissal is due to the employee having taken maternity leave. They may use another reason, for instance, poor performance or gross misconduct.
These are both fair reasons to dismiss an employee, however in most instances the employer will have had to have informed the employee of the performance issues or act(s) of misconduct and would have to go through a disciplinary process.
The employer would also have to provide the employee on maternity leave with written notice of their dismissal and the reasons for their dismissal. If they do not provide this, it may be possible to bring a claim against them for maternity leave discrimination.
Furthermore, if you are dismissed for any reason during your pregnancy or maternity leave and you decide to bring a claim for automatic unfair dismissal and maternity discrimination, then the employer will need to prove that the reason for your dismissal was for a fair reason and that it did not relate to your maternity leave.
What happens if you are made redundant during your maternity leave?
An employer is entitled to make workers redundant at any time during their employment, however they must ensure that there is a genuine redundancy situation, for instance because there has been a downturn in work or because the company is restructuring.
They also need ensure that they consult with employees and go through a fair selection criteria process.
If an employee is put forward for redundancy whilst she is on maternity leave and are not consulted with during this process, it may constitute maternity discrimination.
If an employee is selected for redundancy based on the fact that they are absent from work due to their maternity leave, this would also constitute a strong case for maternity leave discrimination.
Entitlement to suitable alternative work
If an employee is selected for redundancy whilst on maternity leave, they should be offered suitable alternative work within the organisation.
Those employees on maternity leave have priority to suitable alternative jobs over and above those employees who are not absent from work due to pregnancy.
They are also, not required to attend interviews or assessments for these jobs.
If you have been selected for redundancy whilst on maternity leave and your employer has not followed the proper processes as stated above, you may be entitle to claim for unfair dismissal and maternity discrimination in the employment tribunal.
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.