Pregnancy and maternity

Direct discrimination is the only form of discrimination recognised under the Act. However, it may be possible to claim other forms of discrimination via sex discrimination. No direct comparator is required for claims.

Treating a woman unfavourably because she was undergoing IVF treatment is not discrimination on pregnancy and maternity grounds but could be considered to be sex discrimination.

Examples of discrimination include: failing to consult a woman on maternity leave about changes to her work or about possible redundancy, assuming a woman’s work will be less important to her after childbirth and giving her less responsible or less interesting work as a result or excluding a pregnant woman from business trips.

But it’s important not to over-compensate. In Eversheds Legal Services Ltd v De Belin the company had correctly scored candidates for proposed redundancy against a number of criteria. But a woman on maternity leave was given the maximum score against one criterion which she couldn’t have been measured against due to her being on leave. A man complained and the EAT upheld a tribunal’s decision that the decision to give her a maximum score discriminated against her male colleague. Any favourable treatment should be ‘reasonably necessary’ not disproportionate. From April 2015 mothers who have children via surrogacy will be entitled to maternity leave.

The arrival of Shared Parental Leave is likely to lead to new discrimination cases as it effectively changes the focus from the birth of the child to parental responsibility. The civil service and other large employers announced they will be offering full parental pay before Shared Parental Leave provisions came into force.