Under the Equality Act 2010, it is unlawful to discriminate or treat an employee less favourably because of their pregnancy, or because they have given birth recently, are breastfeeding or are on maternity leave.

Discrimination because of pregnancy or maternity is automatic discrimination. An employee does not need to show that they have been treated less favourably than another female employee who is not pregnant or a male employee.

There are two main types of discrimination:

  • Direct discrimination: when a female employee is treated less favourably because of her pregnancy or maternity leave, or because she is breastfeeding.
  • Victimisation: treating an employee detrimentally because of her pregnancy or maternity leave, or because she is breastfeeding.

Areas Where Discrimination Is Likely To Occur In The Workplace

  • Recruitment

Job adverts and specifications should be carefully worded to avoid deterring a particular group of people from applying. Adverts should be placed on multiple platforms, to allow a broad spectrum of applicants. During the interview process, you should avoid personal questions unrelated to the job.

  • Determining Pay and Terms and Conditions

A woman who is on maternity leave is entitled to the same rights and benefits she would normally have, were she not on maternity leave. It would be discriminatory to pay a pregnant employee less than her non-pregnant counterpart for the same job.

  • Training and Development

As an employer, you should be mindful that training should be available to all relevant employees, whether they are working part-time or have chosen flexible working, which some mothers or expecting mothers may do.

  • Selection for Promotion

Employees should not be rejected for promotion because of their pregnancy/maternity leave, or their need to breastfeed. It would be discriminatory to discourage pregnant employees from applying for the promotion, or refuse to promote them because they have made or supported a claim of pregnancy/maternity discrimination.

It would be discriminatory to discipline an employee due to something related to their pregnancy/maternity leave. For example, you could not discipline a pregnant employee for a lot of absences, if the absences are to do with her pregnancy or a pregnancy-related illness.

  • Redundancy and Selection

If you are restructuring and need to make employees redundant, and you are considering someone who is pregnant/ on maternity leave for redundancy, you must consider:

  • Whether the redundancy is genuine and necessary
  • Ensure you consult the employee in question and keep in touch
  • Whether your redundancy selection criteria is non-discriminatory
  • Alternative work

Accommodating Breastfeeding In The Workplace

The Workplace (Health, Safety and Welfare) Regulations 1992 requires employers to provide somewhere where a breastfeeding employee can rest. However, the law does not require you to give paid breaks so employees can breastfeed or express, nor must you provide facilities to allow employees to do this.

Communication is key: it is a good idea to discuss with breastfeeding employees what can be done within reason to facilitate their return to the workplace. As part of your maternity policy or flexible working policy, it may be useful to include a breastfeeding policy, which sets out how those who have requested to change their working conditions, after returning from maternity leave would be considered.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.