Pregnancy and Maternity Discrimination in the Workplace – Changes in 2024
2024 has already brought some significant changes to pregnancy and maternity discrimination law.
But what are they? A re-hash of what was already there? A step too far? Or a great rebirth of maternity protection?
This article seeks to reflect those key developments, and what they might mean for women, employers, and practitioners alike.
(1) An Extension of Redundancy Protections
Until 6th April 2024, Regulation 10 of the Maternity and Parental Leave Regulations 1999 (“MPL”) offered some women positive discrimination, rarely seen outside disability discrimination law.
If it was not practicable by reason of redundancy, to continue to employ someone during their maternity leave, that person obtained priority status for any suitable alternative employment. If a role was suitable, they had to get it. Otherwise, it is Automatic Unfair Dismissal.
From 6th April 2024, it has been substantially widened. That priority now also extends to:
- ‘The Protected Period’, being from when the employer is informed of a pregnancy, until either Statutory Maternity Leave (“SML”) starts, or 2 weeks after the pregnancy (if there is no SML);
- ‘The Additional Protected Period’. This starts after SML, and ends 18 months after the expected week of childbirth (see exact wording for the specific day);
This could triple the protection women have. It extends this positive discrimination from not only the period of maternity leave, but to potentially around nine months beforehand, and potentially nine months or so afterwards.
Employers must be aware of this when conducting any redundancy exercise. No longer must they only consider those women on maternity leave for any suitable alternative role. Now, they must consider anyone whom they have been told is pregnant, or whom has recently returned from maternity leave. This will likely encapsulate many more persons.
(2) Widening of Section 18 EQA 2010
Section 18 EQA 2010 offers protection from unfavourable treatment because of the protected characteristic of pregnancy and maternity. However, it has had its drawbacks.
Before this year, it only applied during the ‘protected period’, which was the duration of any pregnancy and maternity leave. This was the specific impact of S.18(5) EQA 2010. Perhaps that sounds sensible?
However, what about the woman returning from maternity leave, whom finds their role has been changed, their office occupied, and themselves isolated in the workplace, all because she had been pregnant?
That is unfavourable treatment due to maternity, but they seemingly had no claim under S.18. They would have had to rely on S.13 EQA 2010, and (potentially) the difficult comparative exercise which that can entail. Even then though, would a man returning after one year have been treated any differently? Perhaps not.
From 1st January 2024, the position is different. The EQA 2010 (Amendment) Regulations 2023 have amended S.18(2) EQA 2010, and removed S.18(5) EQA 2010. This means that if treatment was due to pregnancy, but occurred after the protected period, S.18 claim still exists. This seeks to reflect the ECJ decision in Brown v Rentokil [1998 ICR 790]. S.18 also offers protection if a person has ‘exercised’ the right to maternity leave.
This is a further protection for women, particularly when no indirect discrimination or harassment claims can be brought on the grounds of pregnancy/maternity (See S.19 and S.26). It is arguable that EU Law may well have offered this protection in any event through Brown, but having it codified in S.18 is certainly helpful, particularly post-Brexit.
(3) Direct Discrimination
Again, until this year, S.13(7) EQA 2010 prevented women claiming that less favourable treatment due to breastfeeding, was direct sex discrimination in the workplace. Again, this was in conflict with EU Law, such as the ECJ decision in Otero Ramos v Servicio Galego de Saude [2018 ICR 965].
This caused an issue. If you were dismissed due to breastfeeding in the workplace, (unless you could rely on EU Law) the statute prevented a S.13 Direct Discrimination Claim ‘because of sex’. A S.18 EQA 2010 claim might have been closed too, for the reasons above. This was unsatisfactory.
From 1st January 2024, Section 13(7) is no more. This means that less favourable treatment due to breastfeeding can now be direct sex discrimination.
Recent case law has assisted in this area too. Cases such as Commissioner of the City of London Police v Geldart [2021 ICR 1329], suggest that a woman who has been treated unfavourably on the ground of pregnancy or maternity, would not need to compare herself to a man to establish direct sex discrimination. If the ‘reason why’ question suggests pregnancy/maternity was the reason for the treatment, a direct sex discrimination claim will likely succeed.
What is gained by this, is a good question.
Section 18(7) prevents a S.13 direct sex discrimination claim being brought, if a S.18 claim can be brought on the same facts. Given the widening of S.18, as described above, this could arguably make some of the benefits of the widening of S.13 redundant. In reality, the key benefit is likely to concern less favourable treatment due to breastfeeding, which will now certainly succeed as a S.13 Direct Sex Discrimination claim, if not under the new widened S.18.
A final option might be a Section 13 EQA 2010 claim, for direct discrimination ‘because of pregnancy or maternity’. It is again questionable what the benefit in it might be. Such a person has S.18, which does not need a comparator. However, given the specific wording of S.18(7) EQA 2010, it seems that S.18 does not prevent such a claim of S.13 direct pregnancy/maternity discrimination, even if a S.18 claim could succeed on the same facts.
(4) The Paternity Leave (Amendment) Regulations 2024
And to close, one for the fathers. If the expected week of childbirth is after 6th April 2024, there is now greater flexibility in when paternity leave can be taken. It can now be taken any time within the first year of birth, and can be taken in 2 x 1-week blocks, rather than only in 2-week blocks.
Conclusion
Some of these changes are codification of ECJ caselaw. Yet, their codification in the EQA 2010 is of real assistance for litigants, employers and practitioners alike.
The impact of the changes to the EQA 2010 are notable. Unfavourable Treatment by an employer because of pregnancy/maternity is now more likely to lead to a successful claim, either under S.13 or S.18. Employers may now lose the technical arguments about ‘protected periods’, which may have allowed them to defend many a claim.
But some changes have far more weight. The impact of the changes to the MPL regarding redundancy is clear, and employers must be alive to them. They offer a significant widening of the protection to women, potentially giving them priority treatment in redundancy situations for over two years of their working life. It is the making of reasonable adjustments on a vast scale indeed.
