Work to rule: Maternity leave and pregnancy

The third in a three-part series on sex discrimination and harassment.

Maternity leave
Maternity leave

In addition to new provisions on harassment (Third Sector, 2 July), there have been other changes to the Sex Discrimination Act 1975.

The act has been amended to give women greater protection during maternity leave. It covers women whose expected week of childbirth falls on or after 5 October 2008.

A claim for discrimination can be brought in respect of the non-payment of a discretionary bonus - for example, a bonus related to performance - for the two-week compulsory maternity leave period immediately following childbirth. Claims for discrimination can now be made concerning terms and conditions of employment in relation to periods of additional maternity leave, to the same extent to which they are available in relation to periods of ordinary maternity leave.

During OML, a woman's terms and conditions apply, except those relating to normal remuneration. During AML, however, a woman is currently entitled to a few of her normal contractual rights, such as maternity-related remuneration, notice of termination of employment and compensation in the event of redundancy.

As a result of the changes, charities removing benefits during AML that are available during OML - gym membership, for example - are likely to face claims of unlawful discrimination, with significant cost implications for employers.

If charities discount AML for accruing contractual annual leave or assessing seniority or financial non-contractual benefits based on length of service, they should rapidly amend these policies.

There has also been a change to discrimination on the grounds of pregnancy. Previously, a woman complaining of less favourable treatment on the grounds of pregnancy had to compare her treatment with that of a woman who was not pregnant. However, a woman can now show that she has been treated less favourably by reason of her pregnancy without that comparison.

This new definition means that a pregnant woman whose employer refuses to allow her additional toilet breaks, or whose job involves heavy lifting that she is unable, but still required, to do, may now be able to bring a claim against her employer.

 - Emma Burrows is a partner and head of the employment group a tTrowers & Hamlins solicitors

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