Pregnancy and maternity discrimination - employee guide

Pregnancy and maternity are protected characteristics under UK employment law. While the law offers substantial protections, many women still face discrimination that can be difficult to identify and prove.

During pregnancy, you have the right to paid time off for antenatal appointments, health and safety protections, and freedom from discrimination. You should notify your employer by the 15th week before your due date.

Maternity leave entitles you to 52 weeks leave (26 weeks Ordinary and 26 weeks Additional), regardless of your length of service. All employees must take at least 2 weeks leave after birth (4 in factories).

For pay, Statutory Maternity Pay (SMP) is available for 39 weeks if you've worked for your employer for 26 weeks by the 15th week before your due date and earn above the lower earnings limit. The first 6 weeks are paid at 90% of your average earnings, with the remaining 33 weeks at £172.48 per week or 90% of your earnings, whichever is lower.

Role changes while you are on leave

Pregnancy discrimination often isn't obvious or direct. Employers rarely explicitly state pregnancy as a reason for unfavourable treatment. Instead, discrimination typically manifests in subtle ways.

One of the most challenging situations occurs when you return from maternity leave to find your role has changed. Your employer might claim this is due to a restructure or business needs rather than your maternity leave. Legally, after Ordinary Maternity Leave, you have the right to return to exactly the same job. After Additional Maternity Leave, if it's not reasonably practicable to return to your original role, you must be offered a suitable alternative with equivalent terms and conditions. The difficulty lies in proving the changes wouldn't have happened regardless of your maternity leave. Ask yourself:

• Were other employees' roles similarly changed?

• Is there a genuine business reason for the change?

• Were you consulted about the changes?

• Does the new role have the same status, pay, and responsibilities?

Is your employer trying to manage you out?

Sometimes employers engage in a pattern of behaviour designed to make your position uncomfortable or untenable – effectively "managing you out" of the organisation. This often involves:

• Gradually removing responsibilities that were previously yours

• Excluding you from meetings or communication chains you were previously part of

• Setting unrealistic targets or deadlines after your return

• Scheduling important meetings during your non-working days if you've returned part-time

• Subtle undermining comments about your commitment or focus

• Repeatedly questioning your childcare arrangements or reliability

These tactics can create a hostile work environment that pressures you to leave voluntarily, allowing the employer to avoid redundancy payments or discrimination claims. They're particularly effective because each individual action might seem minor in isolation, making the pattern harder to prove.

Have your career prospects changed since returning?

Some of the most damaging discrimination affects long-term career progression. You may find yourself:

• Removed from important projects

• Excluded from development opportunities

• Passed over for promotion

• Sidelined from client relationships

These can be particularly difficult to quantify in compensation terms but are legitimate aspects of a claim.

Performance management

If you face performance management or are scored poorly in assessments after announcing your pregnancy or returning from leave, this could indicate discrimination disguised as objective assessment.

Look for:

• Timing that coincides with your pregnancy announcement or return from leave

• Sudden concerns about performance that weren't raised before

• Vague or subjective feedback

• Different standards applied to you compared to colleagues

Redundancy selection

Redundancy selection is another area where discrimination can be disguised. While on maternity leave, you have enhanced protection and must be offered any suitable alternative vacancy first. This protection now extends from when you tell your employer you're pregnant until 18 months after childbirth.

However, employers may still use apparently neutral selection criteria that disadvantage new mothers, such as:

• Recent performance metrics (which may be affected by pregnancy-related absence)

• Attendance records (which might include pregnancy-related absences)

• "Team fit" or "flexibility" criteria that could disadvantage those with caring responsibilities

Employer refusing work adjustments after maternity return

When returning from maternity leave, many women need adjustments to their working arrangements to balance childcare responsibilities. While there's no automatic right to changed hours, refusing reasonable flexibility may constitute indirect sex discrimination, as women are still more likely to have primary childcare responsibilities.

Common issues include:

• Rejecting flexible working requests without proper consideration

• Agreeing to flexible arrangements on paper but making them unworkable in practice (such as scheduling important meetings outside your agreed hours)

• Creating a culture where using flexible arrangements damages career prospects

• Refusing to accommodate breastfeeding needs

• Setting unrealistic expectations that don't account for childcare emergencies

When employers refuse flexibility, they must demonstrate objective business justification. Many simply claim "business need" without evidence. A successful claim requires showing that:

• The refusal puts women at a particular disadvantage

• It put you at that disadvantage

• The employer cannot objectively justify the requirement

The burden of proof in pregnancy discrimination claims

In discrimination cases, you, as employee, need to establish "facts from which the tribunal could decide" that discrimination occurred. This is called the prima facie case. Once established, the burden shifts to the employer to prove there was no discrimination.

This means you don't need absolute proof of discrimination – you need enough evidence to raise a reasonable suspicion. Key evidence includes:

• The timing of unfavorable treatment in relation to your pregnancy or maternity leave

• Comparisons with how non-pregnant colleagues are treated

• Comments or communications that suggest bias

• Patterns of treatment toward pregnant employees or new mothers

Practical steps if you feel you are being discriminated against

1. Document everything – Keep a diary of events, save emails and messages, and note who was present during conversations.

2. Raise concerns formally – Follow your employer's grievance procedure to create a paper trail.

3. Identify comparators – Note how non-pregnant colleagues in similar situations are treated.

4. Seek early advice – Contact ACAS or a solicitor before the three-month deadline for claims.

5. Consider negotiation – Many cases are resolved through settlement agreements rather than tribunals.