Acas has issued comprehensive guidance on pregnancy and maternity discrimination. The guidance aims to help employers comply with their legal obligations and create an accommodating working environment for women who are pregnant or on maternity leave.
Under the Equalities Act 2010, pregnancy and maternity is a protected characteristic, meaning that employees are protected from being discriminated against or victimised due to maternity or pregnancy. To show discrimination a woman needs to show that ‘but for’ her pregnancy/maternity leave she would not have been treated unfavourably. To show victimisation a woman needs to show that she suffered detriment.
An employee is protected against this sort of discrimination from the moment she becomes pregnant to the moment her maternity leave ends, she returns to work or decides to leave employment. In addition, an employee may be protected under this characteristic after this period is over because of a decision made during that period which resulted in unfair treatment. An employee may also make a claim for sex discrimination, another protected characteristic under the Equalities Act 2010, because she has been treated less favourably due to her sex.
There is no minimum length of employment before an employee will be protected under the Equality Act. Instead, discrimination is unlawful from the moment the role is advertised to the employee’s last day of work and beyond.
Last year Acas received more than 14,000 calls about pregnancy and maternity issues, this was an increase of almost 10% on the previous years’ calls. Earlier this year the Department for Business, Innovation and Skills and the Equality and Human Rights Commission released a report which found that one in nine mothers reported that they were either dismissed, made compulsorily redundant (whereas others in the same workplace were not) or treated so poorly that they felt they had to leave their job. These are shocking statistics. The report also found that one in five mothers had experienced harassment or negative comments related to pregnancy or flexible working. This all suggests that discrimination in this area is still an issue and makes for particularly disappointing reading.
However, the report also found that most employers felt that it was in their interests to support pregnant women and those on maternity leave and considered that statutory rights on pregnancy and maternity were reasonable and easy to implement. This is surely right and suggests that the newly issued Acas guidance will be helpful for employers, enabling them to be clear on what rights their employees have and to avoid at best misunderstandings or at worst discriminatory conduct.
The Acas guidance suggests that some practical steps employers can take to ensure a supportive working environment for women who are pregnant or on maternity leave include:
- Developing a pregnancy and maternity policy so employees are aware of their pregnancy and maternity rights
- Train all employees in pregnancy and maternity awareness. This should include:
- What pregnancy and maternity discrimination is;
- How pregnancy and maternity discrimination can occur;
- Employees’ rights and responsibilities; and
- What the employer’s policy says about preventing discrimination.
- Train managers in managing pregnancy and maternity in the workplace. This could include ensuring that managers:
- effectively and sensitively manage the first conversation where an employee tells her manager that she is pregnant;
- identify any potential conflicts between the needs of the business and the needs of the employee due to pregnancy; and
- plan how they will keep in touch with an employee during her maternity leave.
In addition, the guidance offers helpful advice to employers on redundancy processes and redundancy selection criteria to try to ensure that these processes do not result in pregnancy and maternity discrimination claims. This can be a difficult area; although it is potentially fair and lawful to dismiss as redundant a woman who is pregnant or on maternity leave, particular care must be taken to ensure that non-discriminatory selection criteria are used which do not disadvantage an employee who is pregnant or on maternity leave. Employers should not, however, assume that “giving the benefit of the doubt” to the employee on maternity leave will be the safest option: in 2011 the Employment Appeal Tribunal held that an employer, a national law firm, had discriminated against a male lawyer on grounds of sex when, in a redundancy scoring exercise, it inflated the score of his female colleague to take account of the fact that she was on maternity leave. This discriminatory application of the selection criteria also rendered his dismissal unfair.
Lastly, when considering how to choose between potentially redundant employees for any available jobs, employers should remember that if any are on maternity (or adoption) leave, they have an automatic, statutory right to be offered any suitable vacancies. Resolving their future employment should therefore be undertaken as a first step.