Pregnancy and Maternity - Clear Talents

The Equality Act 2010 drew together all previous legislation on discrimination, including the Sex Discrimination Act 1975. Whilst the Equality Act mainly consolidated previous legislation, it did designate pregnancy and maternity as a protected characteristic in its own right, unlike previous legislation, which covered pregnancy and maternity under Sex Discrimination.

The Equality Act is designed to protect people in employment and places responsibilities on employers and some other third parties to ensure this.

Certain “protected characteristics” are identified by the Act, and pregnancy and maternity are one of them.

Summary

Pregnancy and maternity is a protected characteristic under The Equality Act 2010.

Discrimination covers the unfavourable treatment of a woman during the protected period in relation to her pregnancy or illness related to her pregnancy.

Unfavourable treatment includes any discrimination resulting from her asserting her right to take maternity leave, whether it is compulsory, ordinary or additional maternity leave.

The protected period begins when the pregnancy begins and ends at the end of her maternity leave (where she is entitled to ordinary and/or additional maternity leave) or after a period of 2 weeks after the birth (where she is not entitled to ordinary and/or additional maternity leave.) If unfavourable treatment occurs after the protected period but which occurs as a result of a decision made within that period, protection will still apply.

Recruitment and selection

The Equality Act allows you to seek and recruit competent and capable workers. It is how you define competence and how you select on that basis where issues will arise.

Employers cannot discriminate in recruitment on pregnancy or maternity grounds. An employer can’t refuse to employ someone because they are pregnant or on maternity leave. All decisions should be based on whether a candidate has the skills to do the job.

A candidate doesn’t have to tell the employer that they are pregnant when they apply for a job. However, if they do inform the employer of the pregnancy and are not offered the job as a result, this will be pregnancy discrimination. If the candidate doesn’t tell the employer that they are pregnant during recruitment and are offered the job, they must not be dismissed or have the offer withdrawn when the employer finds out about the pregnancy.

All employees on maternity leave should have access to the same opportunities as staff who are at work. Therefore, an employer must communicate all vacancies to staff on maternity leave to allow them to consider applying.

Recruitment agencies

When you use an agency either to select and place workers or to supply temporary or contract workers to work within your business, your business could be liable for ‘end user’ claims of discrimination. Don’t assume that a professional and credible agency will follow best practice. An agency will work in the way they believe to be the most efficient and this may involve making assumptions about the type of candidate they target, to reduce the time spent filling your position.

There may also be claims of “instructions to discriminate” levelled at employers who are careless in how they handle and brief suppliers.

Have a formal contract with those on your preferred supplier list to ensure they can provide evidence of non-discriminatory practice in recruitment and selection. Good agencies will be aware of The Equality Act 2010 and will understand your concerns.

Communication

Communication is key when managing a pregnant employee or one on maternity leave. From the moment a line manager is informed of the pregnancy to the time when she returns to work after maternity leave; communication should be regular and consistent. The tone should be positive and informative, to demonstrate that the organisation is supportive of the employee and that the employee remains a valuable member of the team when on maternity leave.

Communication before leave will focus on the employee’s maternity entitlements, the impact of the pregnancy on work e.g., risk assessments, general support and the details of her expected maternity leave. Once she has started maternity leave, it is important to keep her informed about organisational and people changes, key messages as well as showing a general interest in her and her baby. A line manager who maintains effective communication with a pregnant woman or one on maternity leave is more likely to be given early indications of the expected period of leave and return date, as well as benefit from a fully motivated and engaged employee on her return to work.

Notification of pregnancy

There is no requirement for a pregnant employee or job applicant to inform her employer of the pregnancy until 15 weeks before the beginning of the week when the baby is due. If this isn’t possible, for example because the employee didn’t realise she was pregnant, she must tell you as soon as reasonably possible.

As an employer, you can encourage employees to notify you earlier, to allow you to plan around the maternity leave and carry out your legal obligations, such as Health and Safety Risk Assessments, but ultimately there is no obligation for them to do so until 15 weeks before the baby is due.

When an employee notifies you of her pregnancy, how you react and how you communicate throughout the pregnancy and maternity leave are crucial to ongoing good relationships. The only acceptable response when informed of a pregnancy is to congratulate the mother (and father where appropriate) and focus entirely on the good news, without immediate thought to the operational impact on the organisation.

Some women will be concerned about how the pregnancy news will be viewed both by the organisation and by her colleagues; however positive communication both now and throughout the pregnancy and leave will reassure her that she will not be treated differently because she is pregnant and will not be subject to detrimental treatment.

If an employer has heard of the pregnancy from another source, the mother’s protected period would begin, even if the mother has not notified the employer of the pregnancy herself.

Health and safety risk assessments

Good employers seek to protect employees from risk and try hard not to expose them to danger. Some workplaces and/or roles can be hazardous to pregnant women and/or their unborn baby. Ideally risk assessments should be carried out regularly before pregnancy where this is the case, to identify the risks of a particular role on women of childbearing age. However, when an employer is notified of a pregnancy, they should immediately consider if work is likely to present a particular risk to the mother or the baby.

This involves reviewing the risk for the individual’s specific work, identifying any changes that are necessary to protect her and her unborn baby’s health and making any necessary adjustments. Employees should be involved in this process and the assessment should be reviewed throughout the pregnancy to see if any new adjustments are necessary.

Risks could include (this list is not exhaustive):

Lifting or carrying heavy loads
Standing or sitting for long periods
Exposure to toxic substances
Seating and/or working environments
Driving and/or driving conditions
Long working hours.

Once you have identified a risk you should remove the risk or remove the employee from the situation that exposes them to it. Solutions could include finding suitable alternative work, changing hours of work or, where this isn’t possible, paid suspension from work on health and safety grounds.

If you fail to carry out a risk assessment for a pregnant employee, where it is later seen to be necessary, it may constitute discrimination.

Time off for antenatal care

Pregnant workers are entitled to take reasonable paid time off to attend antenatal appointments and classes. However, they are not entitled to do this until they have notified you that they are pregnant. As an employer, you are entitled to request evidence of the appointments from the second appointment onwards.

Antenatal care may include relaxation or parent craft classes as well as medical examinations if a doctor recommends them.

The employer can suggest that appointments are made outside of working hours where possible, but pregnant women are not obligated to do so, and cannot be treated detrimentally if they chose not to.

Any detrimental treatment as a result of an employee asserting her right to attend antenatal appointments would be seen to be pregnancy and maternity discrimination.

Statutory maternity leave

All employees are entitled to 26 weeks of Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave, making one year in total. However, this may or may not be paid – see Pay section.

If an employee wishes to take Statutory Maternity Leave, there are steps they should follow to notify their employer of their intention to take leave.

The employer may request to see the MATB1 certificate, which is provided by a doctor or midwife, to say when the baby is due. The MATB1 is issued when the woman is 21 weeks pregnant.

There is no obligation for the employee to give any indication of how long they expect to take off work or when they plan to return to work, and they should not be influenced to do so. Many women will be happy to give an indication to help with organisational planning but there is no obligation for them to do so or to stick with this date if they give one.

An employer cannot discriminate against a pregnant employee or one on maternity leave because of their wish to take maternity leave, within the statutory limits.

Employees do not have to take all their maternity leave entitlement. However, they must take a minimum of 2 weeks compulsory maternity leave (4 weeks if they work in a factory) after their baby is born. If a woman returns to work after this compulsory period, her protected period for the purposes of protection against pregnancy and maternity discrimination will end.