Updated guidance for pregnancy and maternity rights

Here is a link to the toolkit. The key points are set out below and the toolkit provides more details.

Pregnancy and maternity is a protected characteristic under the Equality Act 2010. It is unlawful to treat an employee unfavourably:

• Because of pregnancy
• Because of sickness related to pregnancy
• Because they are about to go on maternity leave, or
• For a reason relating to pregnancy.

The protected period starts as soon as the employer knows, believes, or suspects that the employee is pregnant. It ends either at the end of maternity leave or upon return to work for an employee entitled to statutory maternity leave or until two weeks after the end of pregnancy for those who are not entitled to maternity leave (four weeks if the employee works in a factory).

A pregnant employee must be treated in the same way as the other employees except where the pregnant employee requires special treatment or protection because of pregnancy, including paid time off for antenatal care, protection from health and safety risks and protection from being dismissed or disciplined for absence caused by pregnancy-related sickness.

An employee does not have to tell their employer they are pregnant until 15 weeks before the baby is due to be born. However, if an employee chooses not to tell their employer and the employer is unaware of the pregnancy, they will not be protected from pregnancy discrimination if treated unfavourably.

Recruitment

When recruiting new employees, it is unlawful to refuse to shortlist, consider or employ someone because they are:

• Pregnant (which would be pregnancy discrimination), or
• Likely to become pregnant (which would be sex discrimination).

In Vitro Fertilisation (IVF)

There is no legal requirement to give an employee time off to have fertility treatment. However, the refusal of a request could be sex discrimination if a man would be treated more favourably for leave requested for similar reasons. Increasingly, many employers have put in place procedures allowing for time off for IVF and fertility treatment. Often, these procedures enable employees to tell named members of staff on a confidential basis that they, or their partner, are having treatment.

Paid time off for antenatal care

Pregnant employees are legally entitled to reasonable paid time off for antenatal care they have been advised to attend by a registered doctor, midwife or health visitor. Employers cannot unreasonably refuse a request to take time off for antenatal care and must pay pregnant employees their normal hourly rate of pay.  Employees must not be asked to make up any time missed or be asked to use their annual leave for an appointment.

Protection from dismissal and detrimental treatment during pregnancy

Employees should not be denied training if they are pregnant or about to go on maternity leave., However, if this training is going to be out of date when they return from leave, it would be good practice for this to be discussed and potentially postponed with the employee’s agreement. If there is training during their maternity leave, it would be sensible to discuss using one of the 10 allowed keeping in touch (KIT) day to attend.

To ensure that employees do not bully or harass a pregnant colleague, regular training on managing pregnancy and maternity at work should be provided.  There should be a clear written policy on harassment and bullying which should be enforced by taking disciplinary action against employees engaged in that conduct.

If an employee is dismissed during pregnancy, they are legally entitled to written reasons for the dismissal. If the reason for the dismissal is their pregnancy, a reason connected with pregnancy or maternity leave, the dismissal is automatically unfair and no qualifying period of service is needed. In the case of Black v Drain (t/a Pat Drain Barbers) [Employment Tribunal 2022] an employee was dismissed after informing her employer that she was pregnant with her second child shortly before returning to work following maternity leave for her first child. She was found to have been discriminated against on the grounds of pregnancy and was awarded £7500 for injury to feelings.

Pregnant employees must also be treated the same as other employees when being considered for redundancy. Further, where the employer is notified of the pregnancy on or after 6 April 2024, they have the additional right to be offered suitable alternative employment in priority to other employees who are not in a protected position. An employee cannot be selected for redundancy based on criteria relating to their pregnancy.

Performance management

Poor performance by a pregnant employee can be tackled if the issues raised are not related to their pregnancy. Poor performance related to their pregnancy or pregnancy-related absence must not negatively impact an assessment of their overall performance at work. If an employee is going to be on maternity leave at the time of performance reviews, it should be considered whether it is practical to have the review before they go on maternity leave. If this is not possible, the employee should not be disadvantaged because they did not have a performance review for that year, including in relation to any potential bonus or promotion.

Health and Safety

Employers have a legal duty to protect the health and safety of employees during pregnancy, breastfeeding and for six months after childbirth. This includes carrying out a general risk assessment on all employees’ workplaces and regularly reviewing it in case of significant changes at work and individual risk assessments for the pregnant employee. That individual risk assessment should be regularly reviewed and action taken to deal with any health and safety issues arising.  This may result in the employee’s working conditions being adjusted, suitable alternative work being offered or suspension on full pay to avoid the risk.

In the case of Chief Constable of Devon and Cornwall v Town [EAT 2020], a police officer who had been automatically transferred from a front-line operational role to an office-based role on becoming pregnant was found to have been directly and indirectly discriminated against. This was due to her pregnancy automatically triggering a transfer despite risk assessments concluding that she was fit to remain in the response team on restricted duty. The enforced transfer was contrary to the employee’s wishes and a backward step in her career and so amounted to unfavourable treatment because of her pregnancy.

Sickness during pregnancy

Pregnancy-related sickness must be recorded separately from other kinds of sickness. It must not count towards an employee’s total sickness absence record or be used as a reason for disciplinary action or redundancy selection, even where that action is being taken after the employee has returned to work.

A pregnant employee should be treated the same way as other employees. If there is a policy that requires all employees to provide medical evidence after a period of sickness, this can be asked for from a pregnant employee. No pressure should be  put on them to return before they are well enough to do so as this might be pregnancy discrimination.

Employers can recruit a temporary replacement if the pregnant employee is likely to be off sick for a long time, but an employee’s job must not be removed from them just because they are off work with pregnancy-related illness. An employer can cover their absence in the short term in the same way they would with any employee. It is a good idea for an employer to discuss this with the employee to reassure them that their replacement is temporary until they are well enough to return to work.

If an employee is off sick with pregnancy-related sickness at any time during the four weeks up to the start of the expected week of childbirth, maternity leave will start on the day after the first day of absence.

Disability

If a disabled employee who has reasonable adjustments in place informs their employer that they are pregnant, it is good practice for the employer to discuss and review any reasonable adjustments and identify whether any changes need to be made during the different stages of the pregnancy and maternity leave. It is advisable for the review to consider any arrangements for training or KIT days.

Some disabled employees may not need reasonable adjustments however, a temporary reasonable adjustment during pregnancy may need to be considered.

Good communication and forward planning

It is good practice to talk to an employee about their rights and entitlements during pregnancy. This could include time off for antenatal care, health and safety assessments, maternity leave, shared parental leave, pay, sickness absence, flexible working, KIT days and annual leave.

Before the employee starts their maternity leave, it is also important to discuss the level and form of contact, KIT days and pay for these days (including any training the employee wishes to attend) and any other relevant arrangements during the period of leave.

Conclusion

Research carried out in 2023 by the charity Pregnant Then Screwed found that 52% of mothers had faced some form of discrimination during pregnancy, when on maternity leave or on returning to work. 19% of mothers left their jobs because of negative experiences. The EHRC toolkit provides useful, practical guidance for employers to avoid pregnancy discrimination. Although many employers may have changed their family friendly policies following the April 2024 changes, they may now want to review their maternity policies in light of the toolkit.