Employment Law Bulletin 12: Pregnancy
This bulletin will cover the various rights that an employee has when they become pregnant and some of the issues that employers will need to carefully navigate when dealing with their pregnant employees.
There are various pieces of legislation covering an employer’s duties towards pregnant employees. Some of this legislation also covers women on maternity leave, but the focus of this bulletin will be on the rights that apply during pregnancy.
The main pieces of legislation that will apply to pregnant employees are:
The Equality Act 2010
The Maternity and Parental Leave etc Regulations 1999 (MPL)
The Management of Health and Safety at Work Regulations 1999
The Employment Rights Act 1996 (ERA)
Protection from discrimination under the Equality Act 2010
Section 18 of the Equality Act 2010 prohibits discrimination on the grounds of pregnancy and maternity.
This sets out that a woman has the right not to be treated unfavourably during her protected period (the period from the beginning of pregnancy until the end of maternity) because of her pregnancy (or an illness related to her pregnancy), or because she is exercising or is seeking to exercise her right to compulsory, ordinary or additional maternity leave.
Key phrases to note here are ‘unfavourable treatment’ and whether this was ‘because of’ the woman’s pregnancy.
Unlike most other forms of discrimination which require ‘less favourable treatment’ and identifying a ‘comparator’ who the employee was treated less favourable than, pregnancy discrimination only requires the employee to demonstrate ‘unfavourable treatment’, meaning no comparator is required.
What is Unfavourable treatment?
Unfavourable treatment can cover a fairly wide spectrum of treatment by the employer, but typical examples will take the form of dismissal, demotion, not giving promotion/training opportunities or being subjected to disciplinary action for pregnancy related sickness/absence.
Unfavourable treatment alone will not be enough to enable an employee to be successful in a claim for pregnancy/maternity discrimination. It is also necessary for the employment tribunal to identify something more than this from which they are able to conclude that the treatment was because of the pregnancy/maternity, and that this was the reason why the treatment occurred.
The parties will often present conflicting reasons as to why the treatment occurred, but ultimately it will be up to an employment tribunal to determine which version of events they prefer based on the facts before them.
Direct discrimination is unlawful, regardless of the motivation behind it and it is not necessary for the employer to have consciously discriminated against a pregnant employee. As such, a court or tribunal should examine the conscious or subconscious mental processes which led the employer to take the particular course of action they did and consider whether the employees’ pregnancy or maternity played a significant part in that treatment. If more than one person is stated to be responsible for the treatment, the motivation on the part of one of those parties may be enough to have had an influence on the overall treatment, making it unlawful.
The reason need not be the sole or principal reason for the treatment, it only needs to have had a ‘significant influence on the outcome’. The employee’s pregnancy or maternity does not need to be the only or even the main cause of the unfavourable treatment.
Maternity and Parental Leave etc Regulations 1999
In addition to rights under the Equality Act, the MPL sets out some additional rights for pregnant employees.
Notification of pregnancy
Although generally a woman is not required to notify her employer of her pregnancy until the end of the 15th week before the Expected Week of Childbirth (EWC), it is generally in the employee’s best interests to do so.
Without this notification, she will not be able to benefit from additional rights she has such as paid time off for antenatal care, risk assessments and protection from discrimination or dismissal on the grounds of pregnancy. If this notice is in writing, it also triggers some additional health and safety duties that the employer must adhere to.
The notification date is important as if the employee fails to notify their employer (without good reason) before the end of the 15th week before EWC, then she does not technically have the right to maternity leave (compulsory, ordinary or additional) or some of the protections that are set out in the MPL or ERA.
This said, an employer should act very carefully when deciding how to deal with an employee who has failed to notify them within the required time and without good reason. Although it is true the employee may not have the full spectrum of rights available to her, she will still have various other rights such as the right not to be discriminated against, so it would be sensible to seek advice in these situations before taking any steps to ensure that their actions are lawful.
If an employee is looking to claim Statutory Maternity Pay (SMP), it is necessary for the employee to produce a certificate from a doctor or midwife known as a MAT B1 which confirms her EWC. This certificate should not be provided earlier than 20 weeks before EWC and is usually produced no later than 3 weeks after the maternity leave starts. Failure to produce this within the required time limits does not prevent the employee from being able to take maternity leave, but it can prevent the employee from claiming SMP.
Under regulation 19 of the MPL it is unlawful for an employer to subject an employee to a detriment for the reason that they are pregnant. Likewise, if the employee is dismissed and the reason or principal reason for their dismissal is their pregnancy, this will amount to automatic unfair dismissal under regulation 20 of the MPL.
Often claims for discrimination and unfair dismissal/detriment overlap and both are brought before an employment tribunal. However they are distinct and separate claims and there are circumstances where one may apply but not the other.
Health and Safety
In addition to the normal duties that employers have to protect the health and safety of all their employees, they also have additional duties to ensure the health and safety of expectant mothers in the workplace.
Any employer that employs women of childbearing age who do work that could involve risk to the health and safety of a new or expectant mother or her baby from either processes, working conditions or physical, biological or chemical agents must assess those risks in its risk assessment. The employer should not wait until an employee becomes pregnant before carrying out this assessment. Important to note is that ‘biological agents’ includes infectious diseases such as Covid-19.
Although employers are required to carry out these risk assessments, they do not have any specific obligation to take actions to avoid these risks until they are notified in writing that an employee is pregnant.
Helpfully the Health and Safety Executive (HSE) have produced a guide which gives some examples of the typical risks that pregnant employees may experience at work (http://www.hse.gov.uk/pubns/indg373.pdf). This includes risks such as carrying heavy loads, sitting still for long lengths of time and work-related stress, amongst others.
Once notified of pregnancy in writing, employers are required to do everything reasonable to prevent exposure to any of the risks identified, giving information to the employee about the risks and what action has been taken. The process to be followed by employers is as follows:
- Assess the workplace risks posed to either new or expectant mothers or their babies;
- Alter working conditions or hours of work to avoid any significant risk;
- Where altered conditions/hours are not reasonable or the risk would not be avoided, the employer is under a duty to offer suitable alternative work on terms not ‘substantially less favourable’.
- If suitable alternative work is not available, or it is reasonably refused, the employee must be suspended but on full pay.
The Employment Rights Act 1996
As well as linking with the MPL to set out the automatic unfair dismissal and detriment rights for pregnant employees (s.99 of the ERA 1996) and setting out a pregnant employee’s right to maternity leave, the ERA also gives employees a right to take paid time off during working hours in order to receive antenatal care, whatever the length of service or hours that the employee works.
This bulletin hopefully provides some insight into the obligations for employers and the rights of employees when they become pregnant. In a future bulletin we will cover what rights an employee has whilst on maternity leave and when they return to work.
Should you require any assistance in ensuring you are following the correct processes when dealing with pregnant employees or if you are concerned over your rights as a pregnant employee, please get in touch to find out more about how we may be able to help. To arrange your complimentary initial telephone/video consultation with one of our legal experts call 0800 999 4437 or email firstname.lastname@example.org today.