Pregnancy and Maternity Discrimination in Recruitment
01 March 2018
It’s against the law to discriminate against an employee or a job applicant who is pregnant, on maternity leave or breastfeeding. However, it seems that some employers’ attitudes around pregnancy and maternity are not in complete harmony with the law.
A recent poll by the Equality and Human Rights Commission has found that the attitudes of many employers are decades behind employment law regarding the recruitment of new mums and future mums. 1106 senior decision makers from a range of organisations were asked a series of questions regarding the recruitment and employment of women, with a focus on maternity and pregnancy.
The Equality and Human Rights Commission described the findings as “worrying” commenting that British employers are “living in the dark ages.”
Almost 60% of those asked felt that during the recruitment process a female candidate should have to disclose whether she is pregnant. Almost 50% felt that it’s reasonable to ask a female candidate if she has young children.
Legal Rights of New and Prospective Mothers
Under the Equality Act 2010, it’s against the law to discriminate against someone or to treat them unfavourably because they are pregnant, on maternity leave or breastfeeding. This means that employers cannot treat female candidates any differently during the recruitment process based on their pregnancy or maternity.
Consequently, if a recruiter asks a female applicant questions around pregnancy and family planning, then they could be in breach of the Equality Act and risking a potential Employment Tribunal claim.
Maternity and pregnancy discrimination falls into two main categories – unfavourable treatment and victimisation. Employees and job applicants are protected from pregnancy and maternity discrimination under the Equality Act.
Unfavourable treatment might include subjecting a woman to unfair treatment, placing her at a disadvantage or causing her to suffer unwanted behaviour because of her pregnancy or maternity.
There is no need for the treatment of the woman in question to be compared with the treatment of others in order to establish whether unfavourable treatment has occurred. This means that even if other people are being treated in the same way, the treatment may still be discriminatory. For example, if a pregnant employee is not permitted to take regular toilet breaks then this could constitute discrimination, even if her colleagues have the same rules imposed on them.
Victimisation occurs when someone suffers a disadvantage, loss, damage or harm in response to action they have taken (or are suspected to have taken) to protect their employment rights. This might include alleging discrimination, giving evidence, supporting a complaint of discrimination, raising a grievance or bringing an employment tribunal claim.
All female employees and candidates are protected from pregnancy and maternity discrimination within a specific period of time, known as the ‘protected period’.
The protected period starts when the woman becomes pregnant and ends either when her maternity leave ends or when she returns to work (whichever is sooner). If she is not employed and therefore isn’t entitled to maternity leave, then the protected period will end two weeks after the birth of her baby.
If you suffer discrimination outside of this period, or you are not actually pregnant but have been discriminated against on the assumption that you are, then you may not be protected under maternity and pregnancy discrimination laws. However, in these circumstances you may still be protected from discrimination because of your sex.
If You’re a Victim of Pregnancy and Maternity Discrimination
If you believe that you are a victim of pregnancy and maternity discrimination, then you may be entitled to make a discrimination claim. There are strict time limits that apply in cases of discrimination, so it’s advisable to get the ball rolling sooner rather than later.
It’s a good idea to obtain independent legal advice before bringing a claim, to discuss your circumstances and establish your rights. At Co-op Legal Services, our Employment Solicitors understand that bringing a discrimination claim can be incredibly daunting. We can talk you through the process without using legal jargon, so that you know exactly where you stand and the next steps to take.