Pregnancy and maternity discrimination at work

In this guide we outline how to negotiate an exit settlement agreement with your employer if you are experiencing maternity discrimination.

See also our main discrimination guide for an overview of discrimination at work and our articles on redundancy and pregnancy, returning to work from maternity leave, and paternity leave.

What is maternity and pregnancy discrimination?

Legally, this type of discrimination is defined as being treated less favourably than other employees because of being pregnant or being on maternity leave.

Discrimination may become evident in any workplace circumstance, for example, during the recruitment processes, in promotion exercises, training opportunities or in selection for redundancy or other types of dismissal.

Discriminatory or unfair treatment of a woman who is also pregnant or on maternity leave may also occur at any time during her pregnancy or maternity.

What are your rights at work when you’re pregnant or on maternity leave?

The legislation protecting women and new mothers in the workplace is extensive.  However, for the purposes of identifying and making a claim against your employer, we will just focus here on the rights that tend to be most commonly breached by employers

What are your rights when you are pregnant?

• Employers are required by law to carry out adequate health and safety assessments of any risks that a pregnant woman may be exposed to in her working environment.

• All pregnant employees have a right to paid time off for ante-natal care.

What are your rights on maternity leave?

Your main rights are to a period of ‘Ordinary maternity leave’ and ‘Additional maternity leave’ and to fair treatment when you are on leave and when you return to work, as outlined below.

 

When can you start maternity leave?

As a rule, the soonest you can begin maternity leave is 11 weeks before the week your baby is due. If the baby arrives early, leave starts the day after the birth.  If you’re off work with an illness related to your pregnancy during the 4 weeks prior to the due date, your maternity leave starts automatically.

 

How long is maternity leave?

In total, you are entitled to 12 months of statutory maternity leave:

• The first 26 weeks of your maternity leave is known as ‘ordinary maternity leave’.

• The second 26 weeks is known as ‘additional maternity leave’.

You don’t have to take these amounts of maternity leave, but you do have to take a minimum of 2 weeks’ leave – or 4 weeks’ leave if you are a factory worker.

 

How much is maternity pay?

• When you’re on maternity leave you can get Statutory Maternity Pay (SMP) which is payable for up to 39 weeks.

• In addition, your employer may have their own, more generous, scheme which you should check out as soon as you can and ensure you follow your employer’s requirements to receive it when the time comes.

• You might also be in a position to opt for Statutory Shared Parental Leave and Pay.  This is very briefly outlined below.

How much is Statutory Maternity Pay?

Statutory Maternity Pay (SMP) is:

• 90% of your average weekly earnings (before tax) for the first 6 weeks.

• £184.03 or 90% of your average weekly earnings (whichever is lower) for the following 33 weeks (rate of pay from April 2024).

• paid weekly or monthly – with the same frequency as you receive your normal pay – and it’s subject to tax and national insurance.

To qualify for SMP you normally have to earn at least £123 a week and have worked for your employer for at least 26 weeks prior to what’s called the ‘qualifying week’ which is the 15th week before you expect to give birth.

Statutory Shared Parental Leave and Pay

If you and your partner are eligible and decide to take Statutory Shared Parental Leave you can receive Statutory Shared Parental Pay. This is also £184.03 a week or 90% of your average weekly earnings (from April 2024). See our guide on paternity leave for more on Shared Parental Leave and also the government’s page on Shared Parental Leave for further information on this option.

 

What are your rights when you return to work?

• After your ordinary maternity leave, you are entitled to return to the job in which you were employed before your absence. 

• If you take additional maternity leave (i.e. more than 6 months) you have the right to return to the same job, unless it is not reasonably practical for you to return to that job.

• If it’s not reasonably practical for you to return to the same job as before, then you have the right to return to another job that is suitable and appropriate for you in the circumstances.

• You’re also entitled to return on terms and conditions that are no less favourable than those which would have applied if you hadn’t taken maternity leave.

• Your seniority, pension and other similar rights should also all be treated as if you had not been away.

• If you’re entitled to benefits such as pay increments, promotions or bonuses it’s illegal for your employer to withhold them as a result of your maternity leave.

• Statutory paid annual leave continues to accrue during both ordinary and additional maternity leave.

What if your employer has breached your maternity or pregnancy rights?

Despite the low opinion in our society of employers who fail to uphold a woman’s pregnancy or maternity rights, statistics show that discrimination and unfair treatment in such circumstances are quite common.  

However, as mentioned above, many women simply don’t raise any breaches with their employer, as their employer’s poor treatment of them may well mean that they would simply rather not work there any longer. Instead, they would prefer just to move on and start afresh with an employer who places greater value on working mums.

If that is your experience, you could approach your employer about having a ‘without prejudice’ discussion about an exit package or settlement agreement.

In other words, your employer agrees to give you a sum of money in return for your employment ending and you agreeing not to pursue a claim against them. It is also important to remember that if settlement talks break down, a ‘without prejudice’ discussion cannot be used against you at a later stage (eg in an employment tribunal).

 If all else fails you can bring a case against them in the employment tribunal. 

Can you negotiate a settlement for pregnancy and maternity discrimination?

Here we consider whether – and if so, how – you should try to negotiate an exit package from your employment in relation to pregnancy or maternity discrimination against you. 

Your employer offers you a settlement when you’re still on maternity leave

If your employer wants you to leave, they are highly likely to suggest a settlement agreement while you’re still on maternity leave and that is, of course, a time when you are probably not in the best position to negotiate.

If that’s your situation, then you would be advised to seek legal help to negotiate on your behalf. Choose carefully and use a specialist employment law firm (like Monaco Solicitors), with solicitors who have plenty of experience of successfully handling cases like yours.

Have a look at one of our template letters about a woman being made redundant whilst she was on maternity leave to get an idea of the kinds of letters that form the basis for such negotiations.

How to negotiate a pregnancy or maternity discrimination settlement?

Consider the following guidance:

1. Make sure you keep all documentary evidence. Do you have an email from your manager saying that your duties have been allocated to someone else? Has HR confirmed a change in your job role? If so, make sure you keep records of this.
2. Send a ‘without prejudice’ letter to your employer setting out how much money you want and why.
3. Emphasise to your employers the impact that their treatment has had on you. In discrimination cases, you can claim compensation for ‘injury to feelings’. The greater the impact of the discrimination, the more compensation you should be entitled to.
4. Be willing to compromise. Aim high, but be prepared to compromise in order to do a deal and reach a settlement with your employer.
5. If you still can’t reach a settlement, submit a formal grievance to your employer. This creates a paper trail and puts on record your complaints of maternity or pregnancy discrimination.
6. If your employer treats you badly as a result of sending a grievance then you may be able to also claim that you have been victimised as a result of raising concerns about maternity discrimination.
7. You can also send your employer ‘discrimination questions’ which are a formal way of obtaining information about your situation. For example ‘when was the decision made to make me redundant.’ Working Families offer particularly good guidance on putting together discrimination questions.
8. Assuming that your employer agrees to compensate you by way of a settlement agreement, check whether they have paid you an enhanced rate of maternity pay which is repayable if you don’t return to work for a certain period of time after your maternity leave ends. If so, make sure there is a clause in the agreement which says that you do not have to repay the enhanced package.

 

Can you be made redundant on or after maternity leave?

Yes, you can be made redundant when you are on maternity leave and also when you return from maternity leave, but if redundancy is a possibility for you, your employer has to take steps as outlined below:

Made redundant during maternity leave?

If you are put at risk of becoming redundant whilst on maternity leave, your employer is still under a duty to consult with you and act fairly. If they do not, then the dismissal for redundancy could be unfair as well as discriminatory.

If you are made redundant while you’re on maternity leave, you must be offered any suitable available alternative vacancy.  You should be given priority in this process over most other people who are at risk of redundancy, but who aren’t pregnant or aren’t on maternity leave (See also our main guides on Redundancy and on Redundancy selection during pregnancy.

The terms and conditions (including capacity and place of work) must not be substantially less favourable than if you had continued in your old role. See also below about being made redundant after you return from maternity leave.

Made redundant on return from maternity leave?

New mothers who take 6 months or a year out of work often return to find that they are no longer wanted by their employer, or that they are to be made redundant. 

• Often the so-called redundancy is not a genuine redundancy (see our guide on sham redundancy). If it’s not a genuine redundancy,  you will probably want to take some action to ensure that such poor treatment doesn’t end up having significant adverse financial, career and other implications.

• In order to substantiate any claims you may want to make about pregnancy or maternity discrimination, you need to compile evidence to support your claim.  Have a look at the advice we offer on how to collect and present evidence. 

• In addition, see our guide on how to write a ‘without prejudice’ letter which you will need if and when you commence settlement negotiations with your employer.

The last thing your employer wants is to be held to have discriminated against a pregnant woman, or new mother, as this looks bad to the general public, its customers, and most importantly its workforce.

They will therefore want to avoid one of their employers taking a case to an employment tribunal. One of the reasons that very few cases of maternity discrimination end up in an employment tribunal is because employers almost always settle.

 

Next steps

If you try but fail to reach a settlement agreement with your employer and have evidence to show that they’ve discriminated against you because of your pregnancy, maternity leave or subsequent return to work, then contact us at Monaco Solicitors.

We are a well-established firm of employment law specialist solicitors, with many years experience of in helping women to win pregnancy and maternity discrimination cases.

We understand the need for confidentiality and sensitivity in such situations and the preference of most women to reach a settlement with their employers, rather than having to resort to employment tribunal action.

Get in touch to discuss your case:

• By this website link
• By phone on  020 7717 5259
• By email: communications@monacosolicitors.co.uk