Including Regulation 10 of the Maternity and Parental Leave Regulations 1999

This article covers redundancy and dismissals during and after maternity leave. In any one year there are around 441,000 pregnant women at work. Despite this large number of working pregnant women and the fact that women make up nearly half of the workforce, discrimination against pregnant women is still rising. Prior to the recent introduction of tribunal fees there were thousands of such claims submitted each year. The position is less clear now but we suspect that the number of discriminatory acts has not reduced.

The Equal Opportunities Commission (‘EOC’) published a report on this subject. Its key findings included the fact that more than 70% of pregnant women who are treated unfairly at work suffer in silence. The report claimed that unless the current situation changed, one million pregnant women were likely to experience discrimination at work over the next five years. Jenny Watson, Acting Chair of the EOC, said:

“It is shocking that 1 million women over the next 5 years could find themselves sacked, demoted, bullied or isolated at work simply for having a baby. Pregnancy discrimination has a huge impact on their lives, but the harm it does to our economy affects us all. It’s time for honesty about the scale of the problem. Employers - particularly small businesses - need more help in managing pregnancy at work if they are to reap the benefits of retaining pregnant staff.”

The report also said that 30,000 women each year lose their jobs because of their pregnancy and that only 3% of those who experience a problem lodge a claim at an employment tribunal. The figure of 3% is in line with our experience and so we think it is important to provide detailed information. This article will hopefully enable both employers and employees to understand their rights and obligations. It deals with the law on this subject carefully and in some detail.

Under section 99 of the Employment Rights Act 1996 (“ERA”) a woman who is dismissed by reason of her pregnancy, childbirth or maternity leave or other pregnancy related reason is treated as having been unfairly dismissed. That is straightforward - if the reason for your dismissal is pregnancy etc. the dismissal is unfair.

Furthermore, you don’t need 2 years’ service to bring such a claim as there is no qualifying period of employment for such a claim. In order to establish that her dismissal was automatically unfair under section 99 of the ERA, the dismissed woman will need to prove that the only or principal reason for her dismissal was a reason connected to her pregnancy. ‘Sorry I am going to have to dismiss you because you are pregnant’ would be an obvious example as would ‘you have been chosen for redundancy because of your pregnancy’. Examples like this rarely happen of course as normally the dismissal is dressed up as something else. Tribunals are, however, experienced at seeing through made up reasons.

Later in this article we give some examples of how and why tribunals can find discrimination even though the Company is ostensibly acting for a different reason.

As well as unfair dismissal claims, pregnant women who are treated badly due to their pregnancy, childbirth or maternity leave may also have claims under section 47(C) of the Employment Rights Act 1996. This section states that an employee has the right not to be subjected to a detriment for a reason that relates to pregnancy, childbirth or maternity, maternity leave, parental or paternity leave or time off to look after dependents. Not being consulted about important changes to the workplace when everyone else is an example of this type of detriment.

In pregnancy cases, in order to establish that the woman has suffered a detriment under section 47C of the ERA, she will need to show that the only or principal reason that her employer subjected her to a detriment was for a reason connected to her pregnancy. “A detriment” could be any disadvantage, such as excluding a pregnant woman from a training course or not giving a general pay rise because she was on maternity leave.

A dismissal and/or detrimental treatment may also amount to pregnancy and maternity discrimination under the Equality Act 2010 (‘EqA 2010’). This Act has replaced the individual discrimination acts such as the ones dealing with race, disability and sex discrimination. It provides law on both sex discrimination and discrimination on grounds of pregnancy and/or maternity. ‘Pregnancy and Maternity’ is identified as a protected characteristic in section 4 of the EqA 2010.

Key points to be aware of are:

Pregnancy and maternity discrimination in the workplace is prohibited in the specifically identified circumstances set out in section 18.

The Relevant Legal Principles are as follows

Section 18 of the Equality Act 2010 provides:

“(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity. (2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a) because of the pregnancy, … (3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave. (4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.”

The above section is the main ‘anti discrimination’ provision for pregnancy and maternity cases.

Another relevant part of the law, however, is Article 15 of the Equal Treatment Directive 2006:

“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her….”

Article 15 is part of EU Law and is given effect in the UK by regulation 10 of the Maternity and Parental Leave Regulations 1999, which provides:

“(1) This regulation applies where, during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment. (2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract). (3) The new contract of employment must be such that— (a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and (b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.”

Regulation 10 provides that during the relevant period a woman is entitled to special protection and (by virtue of regulation 20) will be treated as unfairly dismissed unfairly dismissed if this is denied.

So if a woman is dismissed because she is pregnant the dismissal as well as being unfair dismissal will amount to pregnancy and maternity discrimination because of course it is unfavourable treatment. In addition, in the case of what otherwise would be a fair redundancy she is not offered a job that is both suitable and available (the Regulation 10 right) her dismissal will be automatically unfair but not necessarily discriminatory. This is because it is not absolutely the case that such a dismissal will automatically amount to unfavourable treatment discrimination under Section 18 of the Equality Act 2010. As a case from the EAT (Sefton Borough Council V Mrs M Wainwright Appeal No. UKEAT/0168/14/LA) published on 18th November 2014 says

“The Claimant’s case is put on the basis that a breach of regulation 10 means that there is inherent discrimination (per Johal) for section 18 purposes. That, however, goes beyond the language of the statute. It would have been relatively easy for the legislators to provide that a breach of regulation 10 would give rise to a breach of section 18 of the Equality Act (as is effectively done in respect of unfair dismissal by the operation of regulation 20). The legislators apparently chose not to do so. Instead the language used is that of unfavourable treatment which is required to be because of the protected characteristic.

Here the unfavourable treatment of the Claimant - her own position being made redundant and not being offered a suitable available vacancy - certainly coincided with her being on a relevant period of maternity leave. I do not, however, accept Mr Sigee’s submission that must inevitably mean that it was because of it. That seems to me to be assuming the reason why something happened simply on the basis of the context in which it happened. I note that such an assumption is not made in the other authorities to which I have been referred and it does not seem to me to be the way in which section 18 is worded. I accept Miss Chudleigh’s submission that the ET was therefore obliged to ask what was the reason why the Claimant was treated the way she was.”

In ‘English’ these two paragraphs mean what we said – although not being offered a job that is suitable and available if dismissed as redundant while on maternity leave means that the dismissal is automatically unfair it is only discriminatory if there is something else which amounts unfavourable treatment of the employee because of the protected characteristic of pregnancy and maternity. This part of the Sefton decision will be relied on by companies to seek to limit a woman’s dismissal on maternity leave in breach of regulation 10 to unfair dismissal only and not as illegal discrimination under section 18. The reason for this is that unfair dismissal compensation is potentially unlimited whereas unfair dismissal compensation is limited to the lesser of a fixed amount each year or a year’s pay whichever is the smaller.

In order to establish unlawful pregnancy and maternity discrimination, it will be necessary for her to show that, but for her pregnancy, she would not have been dismissed (or suffered a detriment). The question is whether the pregnancy was a substantial or effective cause or important factor in the dismissal or other less favourable treatment.

There is also another form of discrimination other than ‘direct’ which is indirect discrimination. We include this because in some circumstances it is relevant. We can explain the two by saying direct discrimination would be ‘I’m sacking you because you are pregnant’ whereas indirect might be ‘I’m not employing you because you aren’t six foot tall (when how high you are is irrelevant to the job).

Technically, indirect discrimination is more complicated than that. In fact, whereas indirect discrimination applies to all the other protected characteristics under the Equality Act 2010 it does not apply to pregnancy and maternity discrimination. This is because indirect sex discrimination cases require a comparator (i.e. someone to compare your treatment to) but EU law has made it clear that pregnancy is a condition unique to women such that it makes no sense for a woman claiming such discrimination to be required to compare her treatment with that treatment that would have been accorded to a man in similar circumstances. The result is that pregnancy cases are excluded from indirect discrimination under the Equality Act 2010 but given special protection under section 18. Section 18, is the section set out above. It does not require a comparator but simply requires that the complainant shows that she has been treated ‘unfavourably’ and no question of comparing her treatment with that of a man arises. The protection against unfavourable treatment exists, however, only during the ‘Protected Period’. This period starts with pregnancy and ends on the expiry of ordinary or additional maternity leave or when she returns to work if earlier. This means a woman on maternity leave has the same “protected status” as a woman who is pregnant. The same considerations apply to detriment, unfavourable treatment or dismissal suffered during maternity leave as they do to such treatment suffered during pregnancy.

If a woman is not an employee she will not have the right to ordinary or additional maternity leave and so the protected period ends on the expiry of compulsory maternity leave (which does apply) which in turn lasts for 2 weeks after the end of her pregnancy.

Outside that protected period sex discrimination (as opposed to pregnancy and maternity discrimination) claims may be bought including indirect sex discrimination claims. An example of this type of discrimination would be the unjustifiable imposition of some provision, criterion or practice which discriminated against women who were trying to get pregnant (or indeed against women generally).

In order to show that the treatment amounts to indirect discrimination, the pregnant woman will have to show that her employer imposed or applied a provision, criterion or practice that indirectly discriminated against her or had a disproportionate effect on her. The precise test is set out in section 19 of the Equality Act 2010 and is worth reading carefully.

The difference between the various types of claim is important. At the stage of bringing a tribunal however, you probably don’t need to know exactly what the difference is but a tribunal itself will want to know the grounds on which you are complaining and in the case of an unrepresented claimant it should assist in formulating the correct technical grounds from the facts as claimed.

The significance of claims being brought under the Equality Act 2010 is that discrimination compensation is potentially unlimited and a cash award for “injury to feelings” can be made even if no other loss has occurred. In contrast unfair dismissal claims under section 99 of the Employment Rights Act 1996 are subject to the cap for compensation. The ‘Compensatory award’ cap is the lower of £76,574 (in 2014) or 12 months’ gross pay where gross pay for the cap excludes pension contributions, benefits and discretionary bonuses and for purely unfair dismissal awards no injury to feeling awards can be made.

Please note that in many articles on the web pregnancy and maternity discrimination will be referred to as sex discrimination. In fact, we are probably guilty of doing it as well because for years pregnancy and maternity discrimination could only be claimed as sex discrimination. Even though it is now a separate head of discrimination, articles that refer to sex discrimination can still be helpful.

Other areas in which pregnant women can be treated detrimentally or less favourably include not being given pay rises or her pay rise being lower than her non-pregnant colleagues, non payment or reduced bonus payments, reduced or non-existent promotion prospects, being ‘sent to Coventry’, being patronised, excluded and just generally treated badly because of pregnancy, maternity leave, breastfeeding etc. Some pregnant women are effectively sidelined, demoted or intentionally disregarded in the workplace, others are over burdened so that they leave or do not return after their maternity leave. Unfortunately, the misguided and the wilful discriminators still believe that women with children are not committed, are unreliable and as such have reduced career prospects. This means that discrimination continues and woman are forced to have to take action in tribunal and via employment law solicitors.

Examples of pregnancy discrimination

Anne notifies her employer on 26 May that she is pregnant. Anne is off sick for four weeks in July due to high blood pressure as a result of the pregnancy. Anne is then dismissed for her poor sickness record. Under her contract of employment she can be dismissed for over 15 day’s sickness in one year. In Brown v Rentokil [1998] IRLR 445 the European Court of Justice found that dismissing for pregnancy related sickness, even if a man could have been dismissed for the same period of sickness absence, is discriminatory. Therefore, Anne could argue that her dismissal was automatically unfair, that she suffered a detriment due to her pregnancy and that she has suffered discrimination. She may also have other claims that are unrelated to her pregnancy.

Mary is in sales – she has a fantastic region and is one of the top performing sales people in the Company. During maternity leave the Company don’t tell her about any planned reorganisation but when she returns her area has been reorganised, her best clients given to another sales person and her earning potential slashed. There is no real reason given for the reorganisation. Mary can point to negative attitudes shown to her when she announced that she was pregnant.

Louise is a senior marketing manager. She is the only person working in that role in a small team. Soon after she goes on maternity leave the Company appoints a second senior marketing manager to the team. During her maternity leave the Company then decides that it only wants one senior marketing manager in the team and claims that the new role is different to that which Louise was previously doing. Louise refuses to be interviewed for what is essentially her old job and is dismissed as redundant. Under the special maternity rules governing redundancy during maternity leave Louise has a right to be offered any suitable job that is available. In our experience of this case the Tribunal had no hesitation whatsoever in finding this sex discrimination (at that time) and unfair dismissal. The special rules on redundancy dismissals during maternity leave are set out below. This is a classic case of the Company considering that someone who was employed during maternity absence is better than the maternity leaver so they go through hoops to justify why they can dismiss the maternity absent employee. We note that the law on redundancy during maternity leave is very important and later in this article we deal with it in detail.

Rachel is a secretary in an engineering company. She announces her pregnancy and the atmosphere changes. She begins to be sidelined, she is not invited to organise a conference which she has always previously done, she is not asked to attend a training course that others go on, her requests for time off for antenatal appointments are always met with distrust and granted grudgingly and comments are made such as ‘I don’t expect you will want to return’. She begins to suffer from high blood pressure caused by the stress of working in such an environment together with the anxiety of carrying her first child. She takes days off sick here and there and is told to attend a disciplinary hearing on the grounds of her not being committed. She brings a claim in while still employed in respect of suffering a detriment.

Chelsea is a nanny to a solicitor. When Chelsea announces that she is pregnant she is dismissed by reason of redundancy 2 weeks later. There is no ostensible reason why the solicitor doesn’t need a nanny and nothing in the domestic arrangements has otherwise changed. Chelsea has had no warning that redundancy was on the cards and although nothing has been written down she always understood that her employer expected to employ a nanny until the child started Pre School. A good rule of thumb is to say the closer the decision to dismiss to the announcement of pregnancy the more likely it is that the Tribunal will draw the inference that the real reason was pregnancy. This is especially the case when there has been no hint of redundancy prior to the announcement.

Another example is a case we did recently (sufficient details have been changed so that we are not revealing any confidential details). ‘Margaret’ was employed in an area of the media in a specialist role. Her job title was, let’s say, Manager, but in practice she was responsible for everything within her area and so it didn’t really matter what her job title was - it could have been senior manager or manager. Three weeks after announcing her pregnancy her new manager decided that the area that Margaret was responsible for needed a senior manager not a manager.

The Company informed Margaret that she was to be made redundant. We pointed out that the new role, of senior manager, was the same as her current role, that other similar ‘things’ (be it books, programs, newspapers or whatever), didn’t have ‘senior managers’ just managers, that Margaret had been doing the job for years with great success and there seemed no valid reason for the change. We also pointed out that if the reorganisation was genuine the new role was a suitable one for Margaret and that it was available and so she must be offered it. Not so said the company - she is a manager and we need a senior manager. We felt that the ‘reorganisation’ was a sham - it wasn’t being done elsewhere in the organisation and we felt it was just a reaction to the pregnancy; an excuse to get rid of Margaret.

The Company maintained its stance so we engaged in letter writing on our Client’s behalf and advised as to what to say and do. The stalemate continued for a while and we waited until either the company backed down or sacked our client - in which case we would have issued proceedings. However, happily for all concerned, all of a sudden the company did back down and offered a large settlement. Our Client accepted and although disappointed to be leaving, at least she received a lot of money. We received a birth announcement card from our happy client and sent an outfit for the baby. We like it when our clients let us know that all went well with the birth!

2013 update - a few recent cases:

• Website marketing and brand expert - dismissed as redundant when pregnant - company claimed her job had gone but announced her successor in the role 4 days after she had left! - settled case on first day of tribunal
• Area Sales Manager - came back from maternity to find her area had changed to one that was impossible for her to do. Won two day tribunal hearing on ‘merits’ and settled before ‘remedy’ hearing.
• Group Administrator - refused permission to work from home (which she needed as the office moved to somewhere which meant she couldn’t collect and deliver her son to the nursery in time) refused on the basis of a blanket ban on home working - case won after full tribunal hearing. This case was reported in the law reports.

2014 update - a few recent cases:

• In 2014 we did two identical cases where the companies were deliberately hiding the fact that they were advertising via recruitment agencies for the job that they claimed was redundant. In both cases the redundant employee was on maternity leave.
• We also did a case where the employee’s female manager sent an email to her boss saying, after two weeks of absence through morning sickness, ‘can’t we just make her redundant now that she has booked a week’s holiday that will make three week’s out’.

Redundancy during maternity leave

Earlier in this article we mentioned the special law on redundancy during maternity leave. Woman who are at risk of dismissal by reason of redundancy during maternity leave are given very strong protection. Regulation 10 of the Maternity and Parental etc Regulations 1999 is in fact a pregnant woman’s nuclear weapon if she is being dismissed by reason of redundancy while on maternity leave. In short it allows her to jump the queue to obtain any available vacancy that is suitable. It is a form of legal positive discrimination. It is such an important section that we have set it out earlier in full.

Note this only applies to dismissals by reason of redundancy – not dismissals for other reasons such as capability or some other substantial reason. If you are on maternity leave and are facing redundancy we advise that you study the Regulation 10 carefully. There are not many reported cases on this subject to provide guidance and we think that the starting point should always be the precise words of this section.

Some cases to look for however, are

• Sefton Borough Council V Mrs M Wainwright 2014 Appeal No. UKEAT/0168/14/LA
• Secretary of State for Justice v Slee 2007 Appeal No. UKEAT/0349/06/JOJ
• Calor Gas Limited v Bray 2005 Appeal No. UKEAT/0633/04/DZM
• Johal v the Commission for Equality and Human Rights UKEAT 0541/09; and
• the De Belin case mentioned in our other maternity and redundancy article. Given that it is very important to concentrate on the words of Regulation 10 we now deal with some of the words in that regulation. The question of whether a job is ‘available’ is, apparently, to be determined by reference to the ordinary meaning of the word i.e. is it in its widest sense ‘available’. This means the question is ‘is there a job to fill’ and questions about why this person shouldn’t fill it are irrelevant. An example is the case of Community Task Force v Rimmer [1986] IRLR 203, [1986] ICR 491, EAT. In this case a woman’s position was redundant while she was on maternity leave. There was a job available but the organisation has funding arrangements that made it clear that the third party funder could and did direct that the post was to be offered to another person. The Appeal Tribunal held that the post in question was still ‘available’. This meant that the job had to be offered to the employee made redundant whilst on maternity leave if automatic unfair dismissal was to be avoided. The third party providing the funding was not the employer and had no contractual relations with the employee.

Regulation 10 is an example of permitted positive discrimination in that the woman on maternity leave can jump the queue to get the alternative job. It is almost an automatic right to get the job. The question of whether the available job is ‘suitable’ is a difficult one. We are aware of one case, only at the tribunal level and not reported, involving The Body Shop retail chain where the Tribunal held that although the section provides for positive discrimination in favour of the maternity returner over and above equally or better qualified men, the job would not be suitable if the woman were able to perform its duties but to do so relatively incompetently. Because of the importance of the word ‘suitable’ in this context we have created a separate article on this area of law.

(Please refer to our further article on ‘suitable alternative employment’ and the case of Bentley v The Body Shop - there is a link at the bottom of this page).

We are often asked about the timing of the protection given under Regulation 10. Our view and that of other commentators is that the protection arises when the redundancy situation becomes known and ends when she is dismissed or returns to work. The right to claim automatic unfair dismissal and discrimination arises when the woman is dismissed and the three month time limit runs from then. The fact that the right to protection under Regulation 10 arises earlier than dismissal or notice is confirmed by at least one case that decided that the right was infringed by a company failing to offer a suitable vacancy to a woman before she was dismissed. Those facts were that at the time of the vacancy being offered to someone else the woman was on maternity leave and the firm knew her job was at risk of redundancy. We confirm our view that it is not necessary that the employee has been dismissed for her to be protected by Regulation 10. The law is such that once it is clear that it will not be practicable for her to return to her old job because of the redundancy situation affecting it she is protected by Regulation 10. In this regard, for those of you with a technical understanding of redundancy law, redundancy in this context has been held to have the meaning given to it by the Employment Rights Act and is not a contract test.

The Sefton case mentioned above also concerns the timing of regulation 10 and so we have updated an existing article especially about this subject. It will be placed on the website.

Other issues in respect of redundancy dismissals when on maternity leave which the employment tribunal will consider are as follows: (this summary broadly follows the facts of Louise’s case above).

• Has the company satisfied the Tribunal that there existed a ‘redundancy situation’ within the definition of redundancy contained in section 139 of the Employment Rights Act 1996 (‘ERA’)? In this respect the Tribunal should consider whether the general right of a woman on maternity leave to return to her old job has been infringed. Different rules apply to the right to return to the old job depending on whether the woman has taken ordinary maternity leave or additional maternity leave.

• If there was a redundancy situation was it the reason for the Claimant employee’s dismissal?

• Was the dismissal of the Claimant employee automatically unfair under section 99 of the Employment Rights Act 1996 (‘ERA’) because the reason or principal reason for the dismissal is of a kind prescribed in Section 99 ERA and the 1999 Regulations, Regulation 20 or because it took place in prescribed circumstances (i.e. relating to pregnancy, childbirth, maternity, ordinary, compulsory or additional maternity leave)?

• Was the dismissal automatically unfair, under regulation 20 of the 1999 regulations, because there was another position which was a ‘suitable available vacancy’ within the meaning of that phrase in Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 and because that vacancy wasn’t offered to the employee?

• If the dismissal was not automatically unfair either by reason of s99 ERA or because it infringed Regulation 10 as above, was it nevertheless unfair in all the circumstances including the size and administrative resources of the employer within the meaning of s 98(4)–(6) ERA (this is the general test for the fairness of a dismissal)?

• Detriment: - was the Claimant Employee unlawfully discriminated against for any reason connected with pregnancy, childbirth maternity leave etc other than in respect of the refusal to allow her to return to work?

• Pregnancy/maternity Discrimination - Dismissal - was the refusal by the Respondent Company to allow the Claimant Employee to return to work less favourable treatment contrary to the Equality Act 2010.

We appreciate that this is a long article but the law on this subject is complicated and there is a lot of confusion about it. In fact, we review the relevant topic on Mumsnet from time to time and note that one or two entries have referred to this article: that is good, but if you want specialist advice from an expert please use the “contact us” link available below to get in touch with Simon Steen, a specialist employment solicitor. We can’t provide free advice though as this is not fair to our paying clients. Please also note that we equally will act for companies and can therefore assist in ensuring you do not get into trouble with this complicated area of law.

Suitable alternative employment – what does ‘suitable’ mean