Definition
Pregnancy and Maternity Discrimination in UK Employment Law: A Comprehensive Guide
Understanding the Importance of Pregnancy and Maternity ProtectionUnderstanding the Importance of Pregnancy and Maternity Protection
Pregnancy and maternity are one of the nine protected characteristics under the Equality Act 2010, and it operates differently from the others in a way that has direct practical consequences for employers. During the protected period, which runs from the beginning of pregnancy to the end of maternity leave, an employee does not need to identify a comparator to establish discrimination; unfavourable treatment because of pregnancy, pregnancy-related illness, or maternity leave is unlawful in itself. Alongside this sit a set of distinct obligations drawn from health and safety law, employment rights legislation, and statutory pay rules, covering risk assessment, time off for antenatal care, leave entitlements, pay, and protection against dismissal and redundancy. For HR professionals, the challenge is less that any individual requirement is difficult than that the obligations arise from several different sources at once and apply across a period that can extend well beyond the pregnancy itself. Understanding how they fit together is what allows an organisation to support employees properly and to avoid the claims that arise, usually not from bad intent, but from a manager not knowing what applies and when.
A Practical Guide to Pregnancy and Maternity Rights
The obligations owed to a pregnant employee begin as soon as the employer is notified and continue through leave and return. They fall into four broad areas: keeping the employee safe at work, allowing time off for antenatal care, administering leave and pay correctly, and ensuring that no employment decision is influenced by the pregnancy or by the leave. Each has its own legal basis and its own common failure points.
Health and Safety and Risk Assessment
Employers have a specific duty under health and safety legislation to assess workplace risks to new and expectant mothers, which covers pregnant employees, those who have given birth within the previous six months, and those who are breastfeeding. Where the general risk assessment identifies hazards that could affect an employee in one of those categories, the employer must take action once notified in writing that a specific employee falls within it.
The action required follows a defined sequence. The employer should first attempt to remove the risk by altering the employee’s working conditions or hours. Where that is not reasonable or would not avoid the risk, the employer must offer suitable alternative work on terms that are not substantially less favourable. Only where no suitable alternative work is available may the employer suspend the employee, and a suspension on maternity grounds carries the right to full pay throughout.
The risks that most commonly require attention include manual handling and heavy lifting, prolonged standing, exposure to hazardous substances, extremes of temperature, night working and long shifts, lone working, and stress-inducing workloads. Practical adjustments frequently involve temporary changes to hours, additional or more frequent rest breaks, providing seating where the role usually involves standing, reallocating physically demanding tasks, and enabling remote or hybrid working where the role permits.
The most common failure in this area is treating the risk assessment as a formality completed once and filed. Pregnancy is a changing condition, and an assessment that was appropriate at twelve weeks may not be appropriate at thirty. Reviewing the assessment periodically, and whenever the employee raises a concern, is both better practice and better protection.
Time Off for Antenatal Care
Pregnant employees have a statutory right to paid time off during working hours to attend antenatal appointments, which covers medical appointments and also antenatal or parenting classes where these are recommended by a registered medical practitioner, midwife, or health visitor. Agency workers acquire the same right once they have satisfied the twelve-week qualifying period.
Employers can request evidence of appointments, in the form of an appointment card or similar confirmation, for all appointments after the first. It is not appropriate to require evidence for the first appointment, since that is typically when the pregnancy is confirmed.
Fathers and partners, including the partner of a pregnant woman, a child’s father or intended parent in a surrogacy arrangement, have a separate right to unpaid time off to accompany the pregnant woman to up to two antenatal appointments, capped at six and a half hours per appointment.
Refusing reasonable time off for antenatal care, or making an employee feel that taking it will count against them, is both a breach of the statutory right and a common feature of subsequent discrimination complaints.
Maternity Leave
All employees, regardless of length of service, are entitled to up to fifty-two weeks of statutory maternity leave, comprising twenty-six weeks of ordinary maternity leave followed by twenty-six weeks of additional maternity leave. There is no qualifying period for the leave entitlement itself.
Two weeks of compulsory maternity leave must be taken immediately after the birth, extending to four weeks for employees working in a factory. Employees cannot waive this period.
Employees must notify the employer by the end of the fifteenth week before the expected week of childbirth of the pregnancy, the expected week of childbirth, and the date they intend to start their leave. The employer must respond within twenty-eight days confirming the date on which the leave will end. Leave can start no earlier than the eleventh week before the expected week of childbirth, and it will start automatically if the employee is absent with a pregnancy-related illness in the four weeks before the expected week of childbirth.
Throughout both ordinary and additional maternity leave, the employee’s terms and conditions continue except for remuneration, meaning entitlements such as annual leave accrual, pension contributions in most circumstances, and contractual benefits continue to run.
Keeping in touch days allow an employee to work up to ten days during maternity leave without ending the leave or losing statutory maternity pay for that week. They are entirely optional on both sides: the employer cannot require the employee to work them, and the employee cannot insist on them. Used well, they support training, handovers, and a smoother return.
Maternity Pay
Statutory maternity pay is payable for up to thirty-nine weeks to employees who meet the qualifying conditions, which require continuous employment with the employer for at least twenty-six weeks by the end of the fifteenth week before the expected week of childbirth, and average weekly earnings at or above the lower earnings limit for National Insurance.
The rate is ninety per cent of average weekly earnings for the first six weeks, followed by thirty-three weeks at the lower of the standard statutory rate or ninety per cent of average weekly earnings. Because the standard rate is uprated annually, payroll teams should confirm the current figure for each tax year rather than relying on a previously configured value.
Employees who do not qualify for statutory maternity pay, including those with insufficient continuous service and many self-employed people, may be entitled to Maternity Allowance claimed through the Department for Work and Pensions instead. Where an employee does not qualify for SMP, the employer must provide form SMP1 explaining why, which the employee needs in order to claim Maternity Allowance.
Many employers offer enhanced contractual maternity pay above the statutory minimum. Where they do, the terms should be clearly documented, applied consistently, and any repayment conditions attached to returning to work should be set out unambiguously in advance.
Protection Against Dismissal and Detriment
Dismissing an employee because of pregnancy, childbirth, or maternity leave is automatically unfair under employment rights legislation, with no qualifying period of service required, and will additionally constitute discrimination under the Equality Act.
The pattern that most often gives rise to claims is not an explicit dismissal for pregnancy, which is rare, but a decision presented in other terms whose timing invites a different inference. Performance criticism that begins shortly after a pregnancy is disclosed, exclusion from projects or development opportunities, unexplained changes to duties or targets, and comments about commitment, reliability, or the difficulty of arranging cover, all feature regularly in tribunal findings. Where an employer takes an adverse decision shortly after disclosure, it needs contemporaneous evidence that the decision was driven by a genuine reason predating the disclosure.
Pregnancy-related sickness absence requires particular care. It should be recorded separately from ordinary sickness absence and must be disregarded for the purposes of absence management triggers and any attendance-related decisions, including redundancy scoring. Counting pregnancy-related absence against an employee is one of the more common and more clearly established errors in this area.
Redundancy Protection
Redundancy protection for pregnancy and maternity was extended significantly with effect from April 2024. Previously, the priority right to be offered a suitable alternative vacancy applied only during maternity leave itself. It now applies from the point the employee informs the employer of the pregnancy and continues until eighteen months after the birth, provided the employee has taken maternity leave.
The nature of this protection is important to understand correctly. It does not make an employee immune from redundancy where a genuine redundancy situation exists. What it does is give the protected employee priority over other employees for any suitable alternative vacancy that exists within the organisation or an associated employer. If a suitable vacancy exists, it must be offered to the protected employee, without a competitive interview process against other redundant colleagues.
The extended window means that employers running a redundancy exercise now need to identify employees who are pregnant, on maternity leave, or within eighteen months of a birth having taken maternity leave, and to apply the priority correctly to each of them. Equivalent protection applies to employees taking adoption leave and to those taking longer periods of shared parental leave. Failing to apply this protection is a straightforward route to an automatically unfair dismissal finding, and it is an area where processes designed before April 2024 may not yet have been updated.
Return to Work
An employee returning from ordinary maternity leave is entitled to return to the same job on the same terms and conditions. An employee returning after additional maternity leave is entitled to return to the same job, or where that is not reasonably practicable, to a suitable and appropriate alternative role on terms no less favourable.
Employees are presumed to be returning at the end of the full fifty-two weeks unless they notify otherwise, and an employee wishing to return earlier must give at least eight weeks’ notice.
The practical elements of a good return are largely a matter of planning. Confirming the return date and any changes to the role or organisation in advance, arranging a re-induction or refresher where systems or processes have changed, and discussing workload and priorities before the first day all reduce the friction that otherwise makes returns difficult. Requests for flexible working are common at this point, and every employee now has the right to make a statutory flexible working request from day one of employment, with employers required to consult before refusing and to respond within two months.
Employees who are breastfeeding remain within the scope of the risk assessment duty. While there is no standalone statutory right to breaks for breastfeeding or expressing milk in the UK, employers must provide suitable rest facilities and should, as a matter of good practice, provide a private, clean space that is not a toilet, along with appropriate storage, once notified. Handling this well is straightforward and materially affects an employee’s experience of returning.
Handling Concerns and Complaints
Where an employee raises a concern about treatment relating to pregnancy or maternity, it should be investigated promptly and impartially, with a written outcome and clear reasoning. Many complaints in this area originate in a manager’s misunderstanding of what the employee was entitled to rather than in deliberate unfairness, and addressing them quickly and openly frequently resolves matters before they escalate.
Employees bringing a tribunal claim must first notify ACAS for early conciliation, and the time limit for a discrimination claim is normally three months less one day from the act complained of, or from the last act in a continuing series. An internal grievance does not extend that limit, so a claim may be issued while a grievance remains in progress.
Building a Reliable Process
Most pregnancy and maternity claims are preventable, and the preventative measures are unglamorous: a clear policy that reflects the current legal position, managers who know what to do when an employee tells them they are pregnant, risk assessments that are actually completed and reviewed, payroll configured with the current statutory rates, absence systems that correctly separate pregnancy-related absence, and redundancy processes updated to reflect the extended protection period. Because this area continues to develop, with further employment legislation in progress, reviewing policies and manager guidance periodically against the current position is a sensible part of the HR governance cycle rather than a one-off exercise.
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