Maternity Law, what the law says...

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The two main Acts that give you rights during pregnancy and maternity are:

Employment Rights Act 1996

Sex Discrimination Act 1975

Both of these Acts confer statutory rights in relation to pregnancy and maternity and you should argue your case under both.

The Sex Discrimination Act 1975
The Sex Discrimination Act 1975 (SDA) makes it unlawful for employers and other organisations to treat women or men less favourably because of their sex in the area of employment. Discrimination can take the following forms:

Direct sex discrimination is less favourable treatment of a woman than a man (or vice versa) because of her sex. Tribunal case law has established for some time that if the less favourable treatment is for reasons connected with pregnancy or maternity this is automatically direct sex discrimination and there is no need to compare yourself to how a man would be treated. From 1 October 2005, the Sex Discrimination Act was amended to specifically prohibit discrimination on the grounds of pregnancy and maternity.

Direct marriage discrimination is less favourable treatment of a married person compared with a single person of the same sex. For example, not giving a married woman equal treatment compared with single women competitors for a post because she might have a baby in the near future.

Indirect sex discrimination occurs when an employer applies a provision, criterion or practice equally to both women and men but which puts or would put women at a particular disadvantage when compared to men (or vice versa) and which the employer cannot show to be a proportionate means of achieving a legitimate aim. An example of this might be where an employer applies a provision that in order to achieve an above average appraisal an employee must have no absences of more than 3 months' duration. This provision could adversely affect more women than men because women need time off for maternity leave and will be indirectly discriminatory unless the employer can show that it is justifed by the needs of the business.

Indirect marriage discrimination occurs when an employer applies a provision, criterion or practice equally to both married women and single women (or married men and single men) but which puts or would put married persons at a particular disadvantage when compared to single persons of the same sex and which the employer cannot show to be a proportionate means of achieving a legitimate aim. An example of this could be where an employer has a practice of making breast-feeding mothers return to work on rigid full-time hours. Such a practice could impact on more married women than single women because more married women than single women have children and will be indirectly discriminatory unless the employer can show that it is justifed by the needs of the business.

Victimisation occurs when you are treated less favourably than others because you acted in good faith to assert your rights under the Sex Discrimination Act or Equal Pay Act. For example, being taken off more challenging work because you complained about not being allowed reasonable time off for antenatal visits.

The SDA:

applies regardless of length of service in employment and regardless of the number of hours you work

applies even to the small employer

covers a broad range of workers including the self-employed and contract workers as well as employees

covers a broad range of employment rights including recruitment, promotion, training, work-related benefits, facilities and services, dismissal and any other detriment

can provide wider rights than those available under the statutory maternity scheme

makes breaches of the health and safety regulations for pregnant women and new mothers unlawful sex discrimination in certain circumstances

allows you to use the SD74 questionnaire which can help establish useful evidence in support of your case

allows you to take a case to an employment tribunal. If you win, you receive compensation for your financial loss because of the treatment; an award for injury to feelings can also be made. There is no limit on the amount that can be awarded under the SDA and it can include the payment of interest.

To claim sex discrimination related to pregnancy you need to show that:

but for your pregnancy you would not have been treated badly

your pregnancy was an effective cause of your treatment, though it does not have to be the sole reason for it

the treatment you received is to your detriment.

In most sex discrimination cases you have to show the tribunal that you were treated less well than a male employee was or would have been treated. However, because only women can get pregnant, the law says that it is not appropariate to compare the treatment of a pregnant woman with that of a man. If you can show that the reason you were treated badly was connected with your pregnancy or being on maternity leave, this will automatically be sex discrimination.

The tribunal will decide your case on the facts that you provide. If you demonstrate facts which suggest that you could have been discriminated against, the law says that your employer will lose the case unless it can show that there was a non-discriminatory reason for the way you were treated.

The Employment Rights Act 1996
The Employment Rights Act 1996 (ERA), which was amended by the Employment Act 2002, protects pregnant employees and new and nursing mothers in regard to:

health and safety risks

unlawful dismissal because of pregnancy or maternity-related reasons

redundancy during maternity leave or maternity absence

the right to receive an accurate written statement of the reasons for dismissal during pregnancy or statutory maternity leave.

Every pregnant employee who has given the employer proper notification is entitled to:

reasonable time off with pay for antenatal care, including parentcraft/relaxation classes

26 weeks ordinary maternity leave with all your normal terms and conditions (except pay)

26 weeks additional maternity leave providing you have 26 weeks service by the 15th week before the expected week of childbirth.

Maternity leave can be taken any time from the 11th week before the week in which the baby is due. If you have exhausted the ordinary maternity leave period already, you must still have 2 weeks off after the birth of your baby, or 4 if you work in a factory. A pregnant employee with at least 26 weeks continuous service by the 15th week before the week the baby is due may take additional maternity leave for up to 26 weeks from the end of ordinary maternity leave. By the end of the 15th week before the expected week of childbirth you must notify your employer of your pregnancy, the expected week of childbirth and when you intend maternity leave to commence. The date can be changed provided the employer is given 28 days notice. Your employer will notify you of the date your ordinary maternity leave and/or additional maternity leave will end within 28 days of the date on which he receives notification. You may also have agreed a period of parental leave with your employer.

If you are ill at the end of maternity leave your employer's normal rules on sickness will apply. However, when applying any sickness scheme rules your employer should disregard any period of sickness while you were pregnant or on maternity leave.

Every employee is protected against unfair treatment or dismissal for any reason connected with pregnancy, health and safety suspension, or for taking maternity leave.



Contact ACAS for advice on your rights under the Employment Rights Act

Other relevant legislation:
Health and Safety
The Managment of Health and Safety at Work Regulations 1999 require your employer to take a number of steps to protect you when you are pregnant, breastfeeding or have given birth within the last six months. However, you must give your employer written notice of your pregnancy.

Your employer must:

Have carried out a risk assessment of any processes, working conditions or agents which could jeopardise the health and safety of you or your baby

Do all that is reasonable to remove any significant risk found, or prevent exposure to it, including changing your working conditions if that is practicable

Give you information on the risk and what action they have taken

If the risk cannot be avoided, you should be offered suitable alternative work on terms and conditions which are not less favourable than your original job

If there is no suitable alternative work available, you should be suspended on full pay for as long as necessary to avoid the risk.

Common risks include:

vibration

handling loads

radiation

extremes of heat and cold

movements and postures

travelling

mental and physical tiredness.

If your employer has not protected you and you have suffered as a result, then you can take a case under the ERA. A failure to carry out a risk assessment which causes you a detriment is also automatically direct sex discrimination under the SDA.

Contact the Health and Safety Executive for advice