Guidance for employers - what is maternity discrimination?
Unlawful maternity discrimination is discrimination that relates to an employee’s maternity leave. There are three types of maternity leave:
- Compulsory maternity leave, which is two weeks immediately after the birth which all employees entitled to maternity leave, must take.
- Ordinary maternity leave, which is the first 26 weeks of leave, including the compulsory leave period and;
- Additional maternity leave, which is a further 26 weeks of leave.
It is unlawful maternity discrimination to treat a woman unfavourably:
- Because she is on compulsory maternity leave.
- Is taking or is trying to take ordinary or additional maternity leave, or;
- Has taken or tried to take ordinary or additional maternity leave.
Alternatively, employees may be entitled to request
shared parental leave. This is leave of up to 50 weeks which can be shared by parents (who are employees) once the mother has given notice to shorten her maternity leave entitlement or returned to work.
You should not subject the employee to unfavourable treatment for taking, seeking to take, or because you believe they are likely to request shared parental leave. Further information is available on NI Direct’s website:
Special provision for a woman on maternity leave
In some situations you may need to treat a woman on maternity leave more favourably to remove any disadvantages she might suffer because of being on maternity leave. Special provision for a woman in connection with her pregnancy, childbirth or maternity leave is not sex discrimination against a man, provided that the action you take does not go beyond what is necessary to rectify her disadvantage.
For example, when carrying out a performance assessment exercise based on meeting annual targets an employer must find a proportionate way to adjust the scoring to compensate for the fact that a woman’s score would otherwise be lower because she was on maternity leave for part of the period being assessed.
Returning to work after leave
In most circumstances, you must allow an employee to return to the same job. However, the right to return is slightly different when the employee is returning from ordinary maternity leave, when there must be no change to her job, and returning from additional maternity leave when you may, in very limited circumstances, offer the employee a suitable alternative job instead. Where those circumstances don’t apply but you do not allow an employee to return to her job this will be maternity discrimination, for example, if you don’t let her return to her job solely because you want to keep the maternity cover in her job.
There are similar rules about what should happen when an employee returns to work after taking shared parental leave.
Who is protected from maternity discrimination?
It is maternity discrimination for you to treat an employee unfavourably because they are on compulsory maternity leave.
Employees are protected from maternity discrimination for taking or trying to take ordinary and additional maternity leave. As noted previously, it can be maternity discrimination to treat someone unfavourably because of her ordinary or additional maternity leave, even if the treatment happens after the maternity leave has come to an end. For example, if an employee’s job is changed unfavourably on her return from leave because she has been on maternity leave, this would be unlawful maternity discrimination. This is different from when protection from pregnancy discrimination applies.
When is a woman protected from maternity discrimination?
For employees entitled to statutory maternity leave, the protection from discrimination lasts from the beginning of your employee’s pregnancy until the end of her additional maternity leave entitlement, or when she returns to work.
For those who are not entitled to maternity leave, the protection afforded is from the beginning of pregnancy until two weeks after the end of the pregnancy. This is called the protected period. Factory workers are prohibited from working for four weeks after giving birth regardless of whether they are entitled to maternity leave. For factory workers not entitled to maternity leave the first two weeks of that period fall within the ‘protected period’ and they will be protected from pregnancy discrimination. Unfavourable treatment after the ‘protected period’ up to the end of their compulsory four week absence is likely to be pregnancy and maternity or sex discrimination.