Pregnancy and Maternity discrimination

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Section 18 of the Equality Act 2010 deals specifically with pregnancy and maternity discrimination. A woman bringing a claim under section 18 does not need to show that a male comparator would have been treated more favourably (they can’t, because men cannot be pregnant or go on maternity leave). In normal direct discrimination claims under section 13, employees need to provide details of a comparator who was treated more favourably than them in comparable circumstances.

In City of London Police v Geldart, the employee was a police officer. During her maternity leave she was paid full pay for 13 weeks, half pay for ten weeks and then statutory maternity pay for the remaining period. She was contractually entitled to a London allowance of £4338 per year. The employer paid the allowance at the same rates as her normal pay – full allowance for 13 weeks, then half allowance for ten weeks and then no allowance until she came back to work. The employee said the allowance should not have been reduced. She brought claims for direct sex discrimination under section 13, rather than using section 18.

The employment tribunal upheld her claim. The police rules governing the reductions in pay for maternity leave did not apply to the allowance. Not paying her the allowance whilst on maternity leave was direct sex discrimination. The employer appealed. Among other things, the employer argued that she had brought her claim under section 13 – direct discrimination – and therefore needed to show a comparator who would have been treated more favourably in comparable circumstances.

The EAT agreed with the employment tribunal. The workplace rules about the allowance simply said that London officers would receive a London allowance. The employee remained a London police officer during maternity leave and was therefore entitled to the allowance. The EAT confirmed that a woman on maternity leave is in a special position. If they are treated less favourably due to pregnancy or maternity leave, they do not need to prove that a man would have been treated differently. This is the case regardless of which section of the Equality Act 2010 they choose to rely on when bringing their claim.

 Astons Solicitors
20th January 2020