What are employers’ obligations regarding pregnant women?

August 18, 2023
Richard Linskell


View profile

New data from Pregnant then Screwed shows that over half of all mothers (52%) have faced some form of discrimination whilst pregnant, on maternity leave or when they returned to work.

Richard Linskell, a gunnercooke Employment Partner, discusses the legal issues behind maternity discrimination.

Why is it a company’s responsibility to prevent maternity discrimination?

Aside from the moral case for protecting women during and returning from maternity leave from dismissal and discrimination, as well as the business case for retaining talent in a tight labour market, the legal liability can be huge if employers don’t get it right. 

What are the legal risks to firms if they don’t take action?

Employers who fail to comply with their legal obligations or who fail to protect women from prohibited treatment face the risk of sex discrimination claims, with uncapped compensation, as well as automatically unfair dismissal claims where the reason or principal reason for dismissal was connected with pregnancy, childbirth or maternity leave, including taking time off for antenatal care.

Uncapped compensation could be awarded for all losses and may include an award to injury to feelings of up to £56,200.  Apart from the financial cost, the cost in lost management time, distraction from the day-to-day running of the business, negative impact on employee relations and organisational culture and, of course, legal costs, can be very damaging.

What are the laws that currently protect pregnant employees?

The main protections are contained in the Equality Act 2010 and the Employment Rights Act 1996.  There is also a plethora of statutory instruments which expand on the obligations, including the Maternity and Parental Leave etc Regulations 1999.

Should legislation evolve to offer further protection?

Many have argued for greater protections for pregnant women. Recently a private members bill was passed into law which aims specifically to extend the protections for women taking or returning from maternity leave.  The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will come into force on 6 April 2024 and will give those who are pregnant or returning from maternity or family leave priority for alternative employment in a redundancy situation.  Some argue that this is still not enough and that there should be a complete bar on making women returners redundant for at least a year after returning.

How can HR create a strategy to stop discrimination?

HR has a key role in protecting employees and the company by ensuring compliance with the legal obligations.  This involves not only making sure that the decisions HR is involved in are compliant, but also ensuring that managers throughout the organisation understand the employer obligations. Too often the relationship breaks down before HR becomes involved or even aware of it, by managers who take decisions or fail to understand the impact of their actions regarding returning employees, for example in performance management discussions or even a lack of sensitivity to the demands on a new mother.

To contact Richard, or read more about his practice, click here.