Maternity discrimination


If you treat an employee unfairly due to their pregnancy or a recent birth, then your business is breaching the Equality Act 2010.

Pregnancy and maternity are part of the nine protected characteristics. So you must respect the rights of your workforce.

This guide provides maternity discrimination advice—it’s important to follow current laws and guidelines to avoid a potential employment tribunal.

But if you need immediate assistance, you can refer to our employment law services for guidance.

The basics of pregnancy and maternity discrimination

Under the Maternity and Parental Leave Regulations 1999, maternity discrimination at work is illegal.

You must respect your employee’s rights throughout the period of protection. Throughout the protected period, there are two points to remember:

  1. If the female employee has the right to ordinary and additional maternity leave, the protected period will stop and the end of the additional maternity leave period or when she returns to work after the pregnancy (if this is earlier).
  2. If she doesn’t have the right to ordinary and additional maternity leave—the protected period will stop at the end of a two week period following the end of the pregnancy.

Discrimination will come about if you show unfavourable treatment or you victimise the staff member. These set out in the Equality Act 2010:

  • Unfavourable treatment is where you treat an individual poorly due to an illness, disability, or pregnancy/looking to take maternity leave.
  • Victimising will involve treating a member of staff unfairly due to raising an allegation of discrimination.

If you do discriminate and an employee raises an employment tribunal claim, you must be aware maternity discrimination payouts have no limit.

So it’s highly important you take due care and attention—as well as respecting British law—when dealing with these issues.

Examples of pregnancy and maternity discrimination

It’s good business practice to understand what your business mustn’t do during the recruitment process or daily working life. Some common instances include:

  • Selecting an employee for redundancy as they’re pregnant or about to start maternity leave.
  • Refusing to promote an individual as they’re pregnant.
  • Reducing pay as the individual is approaching maternity leave.
  • Forcing a member of staff to resign when you find out they’re pregnant.
  • Avoiding a risk assessment after a member of staff becomes pregnant.
  • Not hiring a job candidate as they’re pregnant, when others aren’t.

There are many other examples, but the outlook you should have is to treat a pregnant employee or job candidate the same as everyone else.

If you don’t, you can end up facing an employment tribunal. Whether it’s maternity leave promotion discrimination or recruitment related prejudices, the result can be the same.

During and after maternity leave

You must also remember your duties towards an employee while they’re away from your business.

She has the right to receive all contractual benefits, except remuneration. This is, “wages or salary”. Examples of contractual benefits that continue during OML and AML include:

  • Contractual and statutory holiday entitlement.
  • Fringe benefits such as gym membership.
  • Health insurance.

Discrimination while on maternity leave follows the same laws as set out in the Equality Act 2010 and Maternity and Parental Leave Regulations 1999.

You must continue to respect the rights of your staff members—and this includes when they return to work.

Remain vigilant to avoid discrimination after maternity leave. Your employee has the right to come back to your business in the position they previously held.

However, this depends on the amount of time they’re away. If their maternity leave is for 26 weeks or under:

  • The employee can return to the role they previously held. Additionally, pay and other benefits should be the same.
  • Should you tell them they can’t return to the same job during this time period, it’s unfair dismissal and discrimination.

If their maternity leave is over 26 weeks:

  • It’s still unfair dismissal and discrimination if you don’t let the employee return to work after their leave.
  • Or if you offer a different job with no explanation about the change in roles.
  • However, if it isn’t reasonably practicable for you to permit her to return to the same job, you can offer an alternative one. This must be on terms and conditions that are no less favourable than the terms before her maternity leave.

But you can’t offer them a different job if:

  • The job still exists, but a new member of staff has occupied it.
  • Their role would still be available if they hadn’t taken maternity leave.
  • A new role isn’t within their skill set.
  • The new role offers inferior pay or working conditions than the previous one did.

In need of help?

If you’re uncertain about how to approach maternity leave with an employee, speak to us for legal advice and the procedures to follow: 0800 028 2420.

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