Pregnancy Discrimination: What Employers Must Know

• Employers are legally required to prevent pregnancy discrimination by offering fair treatment and reasonable adjustments for pregnant employees.
• Pregnant employees are entitled to paid time off for antenatal appointments and ringfenced sick leave for pregnancy-related illnesses.
• A safe workplace must be ensured for pregnant employees through personal risk assessments and role adjustments as needed.
• Employees on maternity leave have the right to return to their previous role if they take 26 weeks or less or a similar role if they take the full 52 weeks.

More than a quarter of employers (27%) feel pregnancy places an unreasonable cost burden on their business. This statistic might explain why the vast majority of mothers (77%) have experienced negative, possibly discriminatory behaviour related to pregnancy, maternity or the return to work.

These figures come from Pregnancy and Maternity-Related Discrimination and Disadvantage, a report commissioned by the Equality and Human Rights Commission. Over 3,000 pregnant women and employers were surveyed for the report. Other key findings include:

• One in five mothers (20%) experienced harassment related to pregnancy or requests for flexible working.
• One in ten (10%) mothers were discouraged to attend antenatal appointments by their employer.
• One in nine mothers (11%) reported feeling forced to leave their jobs.
• Just under one in twenty (4%) mothers left their jobs because of unaddressed risks in the workplace.

Any one of these negative experiences would be grounds for legal action. By law, pregnant employees are protected from discrimination and entitled to reasonable adjustments in the workplace for their safety.

If a pregnant employee feels their employer hasn’t treated them lawfully, they can bring their case to an employment tribunal. If the employer is found guilty of pregnancy discrimination or allowing unsafe work conditions, they will be forced to pay compensation. Currently, there’s no upper limit for pregnancy discrimination payments.

Pregnancy discrimination is illegal under the Equality Act 2010.

The Equality Act makes it unlawful to treat an employee unfavourably based on nine protected characteristics, which include pregnancy and maternity.

Discrimination can be direct or indirect.

Direct discrimination happens when someone is treated less favourably because of a protected characteristic. For example, denying a pregnant employee a promotion because you don’t want to pay her more during maternity leave, not because she was unqualified.

Indirect discrimination happens when someone is disadvantaged by a policy or situation that doesn’t take their circumstances into account. It can sometimes be unintentional. For example, requiring everyone to attend early meetings when a pregnant employee might be experiencing morning sickness.

Although indirect pregnancy discrimination isn’t explicitly mentioned in the Equality Act, pregnant employees who feel disadvantaged because of your policies can still bring their case to a tribunal.

The Equality Act protects women from discrimination at the start of pregnancy until they end their maternity leave (or two weeks after birth if they’re not entitled to maternity leave). This timeframe is known as the “protected period.”

The Employment Rights Bill has recently gone through Parliament. It promises stronger protections against pregnancy and maternity discrimination and enhanced rights to flexible working. However, the bill won’t actually become law for several years. So, it offers no new implications for being pregnant at work in 2024.

Preventing pregnancy discrimination and upholding the Equality Act 2010 starts with knowing your duties and your pregnant employees’ entitlements. We’ve listed the key ones to be aware of below.

You must ensure the safety of pregnant employees at work, which often requires reasonable adjustments to their work environment or duties. This process starts with a personal risk assessment – an examination of what might cause harm to the pregnant employee and how that harm can be prevented.

If making work safe for the employee is extremely expensive or time-consuming (i.e., it’s not reasonable), you should provide a suitable alternative role. If this isn’t feasible, the employee must be put on paid leave.

Pregnant employees are entitled to paid time off for antenatal appointments, including medical check-ups, scans and parenting classes recommended by a doctor or midwife.

You can’t make an employee work additional hours to make up for these absences, but you can request they schedule appointments outside of the workday if possible. (They’re not obligated to do this, however.)

Employees are entitled to time off for pregnancy-related illnesses. These absences must be recorded separately from normal sick leave and can’t trigger any kind of review or disciplinary action, making them effectively unlimited.

However, you can request a fit note from a medical professional if you suspect your employees’ absences aren’t truly pregnancy-related. Also, if an employee is off work for a pregnancy-related illness within four weeks of the due date, it counts as an automatic start to maternity leave.

All pregnant employees are entitled to up to 52 weeks of maternity leave, regardless of their length of service. This includes 26 weeks of ordinary maternity leave (OML) and 26 weeks of additional maternity leave (AML).

Employees can choose to end their maternity early. If they return within the first 26 weeks, they must be given their original role on identical terms.

If they take the full 52 weeks, they should ideally come back to their old job. But if this isn’t possible, they can be given an alternative position on similar terms.

Few women take their full maternity leave entitlements because they’re concerned about losing career momentum or being seen as unambitious. You can avoid this by offering more generous maternity terms that prove you value working mums as much as any other employee.

Eligible employees are entitled to statutory maternity pay (SMP) for up to 39 weeks. SMP is paid at 90% of the employee’s average earnings for the first six weeks, followed by a lower rate for the remaining weeks.

Redundancy is an especially complex issue when it involves pregnant employees.

An employee is protected from redundancy at the start of pregnancy up to 18 months after the child is born. You can still make an employee redundant during this 18-month window if there’s a genuine business need, but they must be offered an alternative role if any are available. They’re also the automatic first choice for that role, regardless of the other candidates’ suitability.

You can read more about redundancy protection on the Acas website.

Pregnancy discrimination is a business risk. If you treat pregnant employees unfairly, you face losing a talented team member at best and an appointment at an employment tribunal at worst. And ignorance isn’t a valid defence.

Our online New and Expectant Mothers at Work Training course provides clear guidance to ensure pregnant employees are treated fairly and lawfully. It covers duties to provide a safe, supportive work environment and meet statutory entitlements to pay and leave, ensuring pregnant employees have a positive, discrimination-free maternity and return to work.