Overview of pregnancy and maternity discrimination in employment

Pregnancy and maternity is a protected characteristic in section 4 of the Equality Act 2010 (EqA). However, unlike the other eight protected characteristics, which are defined in sections 5 to 12, there is no definition of pregnancy and maternity in the EqA 2010.

The key points to note are:

• Pregnancy and maternity discrimination in the workplace is prohibited in the specifically identified circumstances set out in section 18 of the EqA 2010
• Under section 18 it is unlawful for an employer to discriminate by treating a woman unfavourably because:
  • of her pregnancy during the protected period (see The protected period) (section 18(2)(a);
  • of an illness she has suffered as a result of her pregnancy during the protected period (section 18(2)(b));
  • she is on compulsory maternity leave (section 18(3));
  • she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave (section 18(4)).
• The test under section 18 is whether the woman has been treated unfavourably, rather than the less favourable treatment test for direct discrimination under section 13. This means that a comparator is not required.
• An act of unfavourable treatment prohibited by section 18 is expressly not direct sex discrimination under section 13 (section 18(7), EqA 2010). However, a claim of direct discrimination on the grounds of pregnancy and maternity might be possible.
• Pregnancy and maternity are excluded from the indirect discrimination provisions of section 19 and the harassment provisions of section 26 of the EqA. However, an employer is 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.
• In determining whether a man has been discriminated against because of sex, no account is taken of special treatment afforded to women in connection with pregnancy or childbirth (section 13(6)(b), EqA 2010).
• A maternity equality clause is included in a woman's contract regarding the calculation of her pay while she is on maternity leave.