Changes to maternity rights: case study 1

Jennifer Clarkson of Lewis Silkin continues a series of articles on changes to maternity rights with a case study that focuses on the way maternity-related sex discrimination claims may be brought.

Hannah's boss tells her that she can attend the company's next management training course, which will improve her prospects of promotion. Hannah thanks him but says that she will have to attend at a later date as she is pregnant and will be on maternity leave at the time of the next course.

When Hannah returns to work after her maternity leave, her boss tells her that she can no longer attend the management training course. Several other employees attended the course while she was on maternity leave, so there is no need for her to be trained too.

What would Hannah have had to show to claim sex discrimination successfully on the grounds of pregnancy or maternity leave prior to 6 April 2008?

Prior to the changes made to the Sex Discrimination Act 1975 (see Changes to maternity rights: overview in this series for further details) Hannah would have had to show that she was treated less favourably on the grounds of her pregnancy or for exercising or seeking to exercise her right to take maternity leave than she would have been treated had she not been pregnant, or had not exercised or sought to exercise her statutory right to maternity leave. In Hannah's case, the less favourable treatment would be her loss of opportunity to attend the management training course and the possible resulting reduction in her promotion prospects, due to her being on maternity leave.

What would Hannah have to show to claim sex discrimination successfully on the grounds of pregnancy or maternity leave, from 6 April 2008 onwards?

Hannah would need to show only that she was treated less favourably on the grounds of her pregnancy or maternity leave. The need for a comparator would no longer apply.

The reasoning behind this change is that pregnancy is a special position requiring special protection and is not comparable with that of either a man or a woman actually at work. To establish that she has been treated less favourably on the grounds of pregnancy or exercising a statutory right to maternity leave, a woman does not need to compare her treatment with that of anyone else - not even with the way that she would have been treated if she was not pregnant or taking maternity leave.

What does this mean in practice?

It is unlikely that this change to the 1975 Act will have a significant practical effect for employers. In this case study, it is likely that Hannah would succeed in a claim for discrimination on the grounds of pregnancy or maternity leave whether the discrimination she suffered occurred before or after 6 April 2008.

However, employers should be aware that there is a risk of exposure to a broader range of claims as a result of the change. For example, a woman whose employer refuses to let her take additional toilet breaks while pregnant may now have a stronger claim. In another example, a woman whose job requires heavy lifting, which she should not perform while pregnant but which she is nonetheless required to do, may have a greater prospect of success.

Before the change, it would have been more difficult for a woman to succeed in claims in these particular examples. This is because it would have been hard for her to show that she was being treated less favourably than she would have been treated if she was not pregnant. If she was not pregnant she would normally also have no entitlement to extra toilet breaks and would also be required to do heavy lifting, so there would be no obvious less favourable treatment on that comparison alone.

Denying a woman who is pregnant or on maternity leave any of the normal employment rights to which she is entitled, whether statutory or contractual, will amount to less favourable treatment. Further, it remains the case that it is not a defence that an employer did not intend to discriminate, or did so to protect the woman. For example, if an employer does not offer a pregnant woman the opportunity of a business trip abroad because it assumes that this will be too demanding for her during her pregnancy, this is likely to be discriminatory.

How will the change affect Hannah's claim at the tribunal?

It will be a simpler process for Hannah, or any other employee bringing a sex discrimination claim, to show discriminatory treatment on the grounds of pregnancy or maternity, due to the fact that she no longer has to satisfy the requirement to show less favourable treatment than a comparator who is not pregnant or taking maternity leave. The tribunal's attention will now be focused solely on the question "why did the employer treat the employee in this way" rather than "was the employee treated less favourably than the comparator".

Further, a woman's failure to provide evidence in relation to a comparator will no longer be relevant to the question of whether costs should be awarded against her if her claim fails.

Conclusion

The removal from the legislation of the need for a comparator does not mean that comparators will now be entirely irrelevant when considering the grounds for the treatment of the employee. For example, if a pregnant woman can show evidence that she has been treated less favourably than non-pregnant employees or than she would have been treated had she not been pregnant, this will still be helpful to her in proving that her employer did, in fact, discriminate on the grounds of pregnancy. However, there is no requirement for her to show such a comparator to succeed with a claim.

Employers should be alert to the fact that a broader range of pregnancy and maternity-related discrimination claims may now be brought by employees. Tribunals will also take a broader approach when analysing whether the treatment of a particular employee was less favourable on these particular grounds.

Next week's article will be a case study on changes to rights during additional maternity leave and will be published on 24 June.

Jennifer Clarkson (jennifer.clarkson@lewissilkin.com) is an associate in the Employment and Incentives Department at Lewis Silkin.

Further information on Lewis Silkin can be accessed at www.lewissilkin.com.