1. Sex Discrimination, Maternity and Pregnancy Felicia Epstein Institute of Employment Rights January 2013

2. Rights under the Employment Rights Act 1996 (“ERA”) Automatically unfair to dismiss a female employee or select her for redundancy due to pregnancy or maternity ERA 1996 s99 It is unlawful to subject a female employee to a detriment other than dismissal ERA 1996 s47C There is no minimum qualifying service

3. Unfavourable treatment under the Equality Act (“EqA” 2010) It is unlawful to treat a woman unfavourably because her pregnancy or because of an illness suffered by her as a result of her pregnancy This applies where the unfavourable treatment, or the decision to carry out the unfavourable treatment, is made in the woman’s ‘protected period’ Able to use questionnaire procedure

4. When is the protected period? The protected period begins with her pregnancy and ends at the end of her statutory maternity leave period or, if earlier, when she returns to work. EqA 2010 s18

5. Under EU law Less favourable treatment of a woman due to pregnancy or maternity is also prohibited by EU law. Article 157 of the Recast Directive as well as the Pregnant Workers Directive 92/85/EEC

6. Claiming under the ERA and the EqA Where possible, women should usually claim under both statutes, since a successful sex discrimination claim would lead to additional compensation Sometimes making a pregnancy discrimination claim under the EqA 2010 will be the only legal option. This is because the woman may not need the other qualifying requirements for claiming unfair dismissal under the ERA 1996 (she may be a contract worker and not an employee)

7. The prohibited reasons for dismissal or selection for redundancy are those connected with any of the following: Maternity and Parental Leave Regulations (MPL Regs) 1999 SI No 3312 1) the employee’s pregnancy; or the fact that she has given birth, where the detrimental act takes place during the ordinary or additional maternity leave period, or in the case of dismissal, where it ends the ordinary or additional maternity leave period; 2) the fact that she took or sought to take the benefits of ordinary or additional a maternity leave;

8. Prohibited Reasons MPL Regs 1999 3) the fact that she failed to return after maternity leave when the had not notified her of her return date or because she undertook or refused to work on keeping-in-touch days; 4) a requirement or recommendation for health and safety suspension; 5) if she is made redundant during the ordinary or additional maternity leave period and not offered any existing suitable alternative vacancy.

9. When can you dismiss a woman who is pregnant or on maternity leave? It is not automatically unfair dismissal to dismiss for the above reasons where the employer proves it is not reasonably practicable, for reasons other than redundancy, to allow the woman to return to a suitable and appropriate alternative job, and an associated employer offers such a job, which the woman accepts or unreasonably refuses.

10. Written reasons If a woman is dismissed while pregnant or at the end of her maternity leave, she is entitled to written reasons for her dismissal, whether or not she asks for them, and regardless of her length of service. ERA 1996 s92(4)

11. Comparison and Defences No need to compare with a woman who was not pregnant or to a man. It need only be shown that the discrimination if because of the woman’s pregnancy. No justifiable defence for pregnancy-related discrimination

12. Other forms of pregnancy discrimination It is pregnancy discrimination for a sick pay scheme to exclude pregnancy-related illness. IVF- Dismissal of a female worker because she is undergoing and advanced stage of IVF treatment constitutes direct sex discrimination under the Equal Treatment Directive and under the EqA ??? Dismissal of a woman at a very early stages of IVF treatment, before she is considered pregnant, is potentially sex discrimination. However, a male comparator would be required.

13. Can men claim pregnancy related discrimination? Men cannot claim sex discrimination if an employer chooses to give special treatment to women in connection with pregnancy or childbirth. EqA 2010 s13 (6)(b) However, this only applies if the special treatment goes no further than is reasonably necessary to compensate the woman for any disadvantage occasioned by her being pregnant or on maternity leave. Eversheds Legal Services Ltd v De Belin UKEAT/0352/10 and UKEAT/0444/10

14. Can men claim associative pregnancy discrimination? Men cannot claim pregnancy discrimination if he was treated less favourably because of their partner’s pregnancy Kulikaoskas v MacDuff Shellfish UKEAT/0062/09) under the SDA Associative discrimination under the EqA not tested

15. The right to return after maternity or parental leave A woman is entitled to return to the job in which she was employed before her absence on no less favourable terms and conditions than had she not been absent. ML Regs 1999 regs 18(1), 18A (1)(a)(ii) and (b). This includes her seniority, pension rights and similar rights

16. What is the same job? The ‘same job’ does not mean the woman has to be allowed to return to literally the same position as before she went on leave. However, the employer cannot change her duties or workplace just because that is allowed by the woman’s contract.

17. What can a tribunal take into account? The tribunal will take account of the normal range of variation in duties and location which occurred before the woman went onto leave. The legislation seeks to ensure there is as little dislocation as reasonably possible in her working life, so as to avoid adding to the burdens which will inevitably exist in her family or private life simply because she has a very young infant making new demands upon her.

18. Redundancy during maternity leave Where during ordinary maternity leave (OML) and additional maternity leave (AML) it is not practicable due to redundancy for the woman’s employer to continue to employ her under existing contract of employment, the woman must be offered any suitable available vacancy with her employer or an associated employer. MPL Regs 1999 reg10

19. Redundancy during maternity leave The terms and conditions must not be substantially less favourable than had she continued under the previous contract MPL Regs 1999 reg 10 (3) The offer must be made before the end of her existing contract of employment and must start immediately on the ending of her existing contract of employment. ACAS guide Managing Redundancy For Pregnant Employees or those on Maternity Leave July 2012

20. Other Issues Rights during maternity leave Keeping in touch Time off for antenatal care

21. Recent Cases Hair Division Ltd v Macmillan EAT in Scotland,12 October 2012 Hair salon operated by a company. Claimant, who had recently become pregnant and was absent from work early in her pregnancy for 11 days for pregnancy-related reasons. On her return, she told both her line manager, Mrs Hendry, and the managing director himself that she was due to have a scan to see whether her pregnancy was still intact. It was, a fact which she reported to Mrs Hendry. Subsequently, the Claimant was certified unfit to work as a result of work- related stress and was dismissed.

22. Hair Division Ltd v Macmillan EAT in Scotland ET found that the dismissal was pregnancy-related, The EAT overruled the finding that the dismissal was pregnancy related, holding it was not open to the Employment Tribunal to find that there was pregnancy discrimination. The EAT found that it is not enough to show that there is a causal chain linking the employee’s pregnancy and her dismissal.

23. Koehane v Commissioner of Police of the Metropolis Watford Employment Tribunal 17 July 2012 Katherine Keohane was employed as a police dog handler. The dog allocated for operational duties to her was Nunki Pippin, and she trained with that dog. During her first pregnancy and maternity leave, the Claimant looked after Nunki Pippin. She returned to work on the 28 th February 2010. However, on the 19 th October 2010, the Claimant notified the Respondent that she was pregnant again, and this time it was decided to reallocate her dog. She was told to return the dog by 1 November 2010.

24. Koehane v Commissioner of Police of the Metropolis Watford Employment Tribunal 17 July 2012 The Tribunal found that this amounted to unfavourable treatment of the Claimant because of her second pregnancy. The Claimant was awarded £9k for injury to feelings and £2.6k in respect of loss of overtime.

25. Koehane v Commissioner of Police of the Metropolis The Tribunal recommended that 1.The Respondent amend and conduct a review of its policy of its policy regarding reallocation of dogs and its impact on pregnant workers to minimise the impact of it on pregnant workers 2. Within 3 months the Respondent amend the terms of the policy relating to retention, re-allocation or withdrawal of police dogs. 3. Within 3 months the Respondent must amend its policy to ensure that pregnant workers are consulted, prior to and involved in,decisions taken under the policy.

26. Maksymiuk v Bar Roma Partnership EAT/0017/12/BI The EAT held that an employment tribunal was entitled to reject a claim of pregnancy discrimination where an employee had been made redundant soon after telling her employer that she was pregnant. The tribunal had made no error in finding that because there was a genuine redundancy situation and that objective criteria had been applied, the claim of discrimination was doomed to fail.

27. Chief Constable of Hampshire Constabulary v Haque EAT/0483/10/CEA The EAT found among other findings that the tribunal appeared to find that if a women on maternity leave is subjected to disadvantage whilst on leave, the disadvantage being related to her maternity, that is necessarily sex discrimination: it failed to ask why the treatment, constituting that disadvantage had been afforded her. The matter was remitted to a fresh tribunal.