Blog on pregnancy and maternity discrimination

Blog by Michael Nadin – Employment Law Solicitor

A number of recent cases heard in Employment Tribunals have highlighted that employers regularly underestimate the risks associated with dismissing pregnant employees, or those who are taking maternity leave.

This article focusses on the risks inherent in dismissing a pregnant employee for performance or disciplinary reasons during their pregnancy or subsequent maternity leave.

As long as employers have valid reasons, follow thorough and fair procedures and seek (and follow) expert legal advice, it is potentially possible to dismiss employees who are pregnant or on maternity leave.  However, we would advise employers to seek appropriate legal advice prior to taking any steps that could be seen as subjecting a pregnant employee to any form of detriment.

Employment law gives rise to a number of rights and obligations for employees and employers in relation to pregnancy and maternity.

Pregnancy and maternity is one of nine “protected characteristics” covered by the Equality Act (EqA) 2010.

A survey carried out by the Equality and Human Rights Commission in June 2017 found:

• 77% of mothers surveyed said that they had had a negative and possibly discriminatory experience during pregnancy, maternity leave or after their return from maternity leave.
• 70% of employers surveyed thought that women should declare whether they are pregnant during recruitment and 25% thought it was reasonable to ask women at the interview stage whether they intended to have children or more children.

Who is protected?

The EqA 2010 protects a wide range of individuals within the field of employment, occupation and vocational training, including employees, partners, barristers, agency workers and some self-employed contractors.

This means that, although the right to statutory maternity leave under the Employment Rights Act 1996 (ERA 1996) only applies to employees, a wider class of individuals will benefit from the right not to suffer discrimination because of pregnancy or maternity.

Not many employers realise that replacing an agency worker because she is frequently off with morning sickness could be discriminatory.

It is unlawful for an employer to:

• discriminate by treating a woman unfavourably during the “protected period” (from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy (section 18(2)); or
• discriminate by treating a woman unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave (section 18(3) and (4)).
• an employer is also prohibited from victimising a job applicant or employee because they have made or intend to make a pregnancy and maternity discrimination complaint, or because they have done or intend to do other things in connection with the EqA 2010.
• If one employee discriminates against another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be liable.

If a job applicant or employee succeeds in a claim for pregnancy and maternity discrimination, a tribunal will generally award compensation (including a sum for injury to feelings).

Discrimination because of pregnancy and maternity

Under section 18 of the EqA 2010, pregnancy and maternity discrimination occurs where an employer treats a woman unfavourably:

• During the protected period, because of her pregnancy or because of an illness suffered by her as a result of her pregnancy.
• Because she is on compulsory maternity leave.
• Because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

(Section 18(2), (3) and (4), EqA 2010)

The protected period

The protected period under the EqA 2010 is the period which starts when a woman’s pregnancy begins and ends:

• If she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; or
• If she does not have that right, at the end of the period of two weeks beginning with the end of the pregnancy.

(Section 18(6), EqA 2010)

If the unfavourable treatment takes the form of implementation of a decision that was taken during the protected period, it will be regarded as having taken place during that period even if the treatment does not in fact take place until after the protected period has ended (section 18(5), EqA 2010).

In Lyons v DWP Jobcentre Plus UKEAT/0348/13, the Employment Appeal Tribunal agreed with a tribunal’s decision that a woman, who was dismissed having been off sick with post-natal depression for several months after the end of her maternity leave, was not discriminated against because of pregnancy or sex. It reiterated that pregnancy discrimination under section 18 only occurs where a woman is treated unfavourably during the protected period.

Unfavourable treatment

Unfavourable treatment in an employment context will frequently take the form of demotion, dismissal or the denial of training or promotion opportunities because a woman is pregnant or on maternity leave. It could also include taking periods of pregnancy-related sickness absence into account when deciding to trigger an absence management procedure.

“Because of”

It is rare for there to be direct evidence of discrimination and often the reason for the unfavourable treatment is not immediately apparent. In those cases it is necessary for the Tribunal to inquire into the Employer’s mental processes to determine the factual criteria that they have applied. These are sometimes referred to as “reason why” cases.

Applying a “but for” test” may assist in ascertaining the reason the alleged discriminator acted as they did, and so whether committed unlawful discrimination (that is, but for the fact that a woman was pregnant or taking maternity leave, would she have suffered the unfavourable treatment?). However, the answer to the “but for” question will not necessarily be determinative.

Burden of proof

If an employee brings a claim for pregnancy and maternity discrimination then they are required to show that there is a prima facia case of discrimination that needs to be answered.  They must be able to show facts, which is the absence of any other explanation could lead a tribunal to find that an act of discrimination occurred.

If the employee overcomes this relatively modest hurdle then the burden of proof reverses and the employer is then required to prove that the alleged treatment was not discriminatory.

Dismissal

There are also separate statutory rules in the ERA 1996 protecting employees from dismissal and detriment (except in relation to pay) where the principal reason is related to pregnancy or maternity leave.

As well as being unfavourable treatment employers should be aware that dismissals for reasons connected with pregnancy, childbirth, or statutory maternity pay are automatically unfair under s99 ERA 1996 and employees bringing such claims do not need to have worked for the 2 year qualifying period required by “ordinary” unfair dismissal claims.

Caselaw example

In a recently decided case in the Employment Tribunal, an employer dismissed a pregnant employee (with less than 2 years’ service) purportedly for gross misconduct.  The employer had followed a disciplinary process and made findings in relation to work (or the lack thereof) that the employee had carried out for a client.

The employer categorised the employee’s conduct as gross misconduct and dismissed.

The employee raised complaints of pregnancy discrimination and automatic unfair dismissal, alleging that the dismissal was influenced by the fact of her pregnancy.

The Employment Tribunal preferred the evidence of the employee, and agreed that leading up to the dismissal there was evidence that the employer was unhappy with the fact of her pregnancy and time off she was taking for pregnancy related illness.

This was enough to reverse the burden of proof and the employer was unable to satisfy the Tribunal that on the evidence available it had sufficient grounds to justify dismissing the employee for gross misconduct.  The Tribunal found that the employer had genuine concerns regarding the performance of the employee and that the alleged behaviour may amount to misconduct.  However, the evidence did not support a finding of gross misconduct which led the Tribunal to conclude that the employee’s pregnancy must have influenced the decision to dismiss.

The Employee consequently won her claims for discrimination and unfair dismissal.

One factor which the Tribunal took into account was correspondence between the employer and its HR adviser which indicated that the employer had already made up its mind to dismiss the employee prior to commencing the disciplinary process.

Employers often do not realise that correspondence to / from and advice from a HR consultant is not legally privileged and rarely attracts litigation privilege.  Therefore such correspondence and advice must be disclosed in subsequent Employment Tribunal proceedings.

The same is not true in relation to advice from a solicitor, which automatically attracts legal privilege and remains confidential and not subject to the rules on disclosure.

Therefore, our advice would be to seek advice from a solicitor in the event that there is any chance of action being taken against a pregnant employee (or one on maternity leave) which could be interpreted as unfavourable treatment (up to and including dismissal).

Employment Tribunals do not need to consider why a particular Employer might have discriminated against the employee in questions.  It is possible to envisage a scenario where an employer has legitimate concerns about an employee’s performance which would ordinarily have been dealt with via a capability procedure.  However, the employer might be aware that if the employee went on 12 month’s maternity leave she would have accrued 2 years’ qualifying service on her return, making it much harder and more risky to dismiss her.

Therefore, although performance is the primary motive for dismissal, the employee would not have been dismissed in such haste if it were not for the fact of her pregnancy and impending maternity leave.  Such action would constitute discrimination.

If you would like any advice on any aspect of employment law, either as an employer or employee, please contact me on 01604 609560 or by e-mail michael.nadin@dfalaw.co.uk