How-to guide: An employer’s guide to navigating pregnancy and maternity rights in the workplace (UK)

Introduction

This how-to guide provides guidance to in-house counsel, private practice lawyers and human resources professionals working in England, Wales and Scotland (GB) on the issues to consider when addressing pregnancy and maternity in the workplace, including how to avoid discrimination risks. This guide does not apply to Northern Ireland, where employment law is devolved to the Northern Ireland Assembly.

Pregnancy and maternity present some of the most sensitive and legally complex areas of employment law. Employers must navigate a wide range of statutory entitlements, health and safety obligations, and discrimination protections — all while balancing operational demands and supporting the needs of expectant and new parents.

This guide covers:

Protection against discrimination
Maternity leave and return to work
Redundancy and restructuring
Practical considerations

This guide can be used in conjunction with How-to guides: Overview of workplace discrimination and harassment law, How to avoid sex discrimination in the workplace and How to investigate workplace harassment complaints and Quick view: Protected characteristics under the Equality Act 2010.

Employers should be aware that the Employment Rights Bill 2024, introduced on 10 October 2024, aims to significantly enhance worker protections in the UK. Key provisions include granting day-one rights for unfair dismissal, paternity, parental, and bereavement leave, changes to sick pay and flexible working rights, protections against zero-hours contracts and restrictions on the use of ‘fire and rehire’ practices. New legislation will be introduced throughout 2025 and 2026. Further information can be found at UK Parliament: Employment rights bill and Employment Rights Bill: factsheets.

Section 1 – Protection against discrimination

One of the key areas of law for employers to consider is the protection employees have during pregnancy and maternity leave.

1.1 The Equality Act 2010

The Equality Act 2010 (EqA 2010) is the core piece of legislation in England and Wales that consolidates various anti-discrimination laws. Among its provisions, it specifically addresses discrimination related to pregnancy and maternity, recognising these as one of the nine protected characteristics (section 4 EqA 2010).

Unlike the other protected characteristics, the EqA 2010 primarily identifies only two forms of discrimination in this context: direct discrimination and victimisation.

1.1.1 Direct discrimination

Direct discrimination occurs when a woman is treated less favourably because of her pregnancy (see section 13 EqA 2010). It will generally apply when the employee is within or outside the protected period (see 1.1.4 below), when there is an incorrect perception the employee is pregnant, or where the claim is based on the employee’s association with those who are pregnant.

1.1.2 Victimisation

Victimisation (section 27 EqA 2010) refers to treating someone detrimentally because they have made or supported a complaint about pregnancy or maternity discrimination. This could involve subjecting the individual to detrimental treatment, such as exclusion from training opportunities or social events, because they pursued a discrimination claim or raised an internal complaint about discrimination.

1.1.3 No indirect discrimination and harassment

Unlike other protected characteristics, the EqA 2010 does not explicitly recognise indirect discrimination or harassment in relation to pregnancy and maternity. Indirect discrimination involves policies or practices that, while applied universally, disproportionately disadvantage a particular group. Harassment refers to unwanted conduct that violates a person’s dignity or creates an intimidating environment (for further information see How-to guide: Overview of workplace discrimination and harassment law). However, in certain situations, such treatment may be addressed under provisions related to sex discrimination under the EqA 2010.

Examples of indirect sex discrimination in the context of pregnancy or maternity

Common examples of provisions, criteria or practices that are indirectly discriminatory on the grounds of sex, and arise from pregnancy and maternity, are:

a requirement to work full-time hours with no flexibility, which disproportionately affects women returning from maternity leave;
refusal to allow remote or hybrid working for roles that could reasonably accommodate it, disproportionately affecting new mothers;
mandatory attendance at early morning meetings, disadvantaging women, who are statistically more likely to have caring responsibilities and may be managing childcare responsibilities; or
a policy limiting career progression to those who can undertake international travel, disadvantaging new mothers who are more likely to have caring responsibilities.

Examples of harassment in the context of pregnancy or maternity

Common examples of harassment that relates to sex, that arise from pregnancy or maternity include:

making jokes or comments about ‘baby brain’ or ‘not pulling your weight’ during pregnancy;
questioning commitment to the role or insinuating reduced ambition because the employee is pregnant;
publicly commenting on physical changes during pregnancy in a derogatory or mocking tone;
colleagues pressuring the employee to share personal medical information or plans for returning to work; or
isolating a pregnant employee from team meetings or social events ‘because it might be tiring’, without consultation or request.

For further information about workplace harassment generally, see How-to guide: How to investigate workplace harassment complaints.

1.1.4 Section 18 pregnancy and maternity discrimination

Section 18 EqA 2010 specifically addresses discrimination related to pregnancy and maternity in the workplace. It outlines that a person (A) discriminates against a woman if, during the protected period in relation to her pregnancy, A treats her unfavourably because of the pregnancy or because of illness suffered as a result of the pregnancy. The key aspects of this provision include those listed below.

Protected period

This period begins when the pregnancy starts and ends at the conclusion of the additional maternity leave (AML) period or when the employee returns to work, whichever is earlier.

Unfavourable treatment

Unlike direct discrimination under section 13 EqA 2010, which requires less favourable treatment, section 18 focuses on unfavourable treatment, which does not necessitate a comparative approach.

No comparator required

A significant distinction is that, under section 18, a woman does not need to compare her treatment to that of someone else to establish discrimination. For instance, if an employer unilaterally reduces a pregnant employee’s hours due to her pregnancy-related absences, this would likely be considered pregnancy discrimination under section 18.

Examples of section 18 discrimination

Examples of unfavourable treatment for pregnancy or maternity include:

cutting working hours or changing duties following pregnancy notification, claiming it is ‘for her own good’, without consultation;
failing to consult an employee on maternity leave during a redundancy process;
withdrawing a job offer after the candidate discloses her pregnancy during pre-employment checks;
issuing warnings for absence linked to a pregnancy-related illness, even though these absences should be disregarded; and
delaying a salary increase that was due to be implemented during maternity leave, until the employee returns.

Section 2 – Maternity leave and return to work

From day one of employment, all employees are entitled to 52 weeks’ maternity leave. Employees are also entitled to statutory maternity pay, subject to eligibility criteria. Many employers pay enhanced maternity pay above the statutory requirements. For further information about maternity leave and pay, see ACAS: Managing pregnancy and maternity.

The legal framework governing employees returning to work following maternity leave is designed to protect the rights of returning mothers, while ensuring a smooth reintegration into the workplace.

2.1 Rights upon return

Employees returning from maternity leave have specific legal rights aimed at safeguarding their position.

2.1.1 Same job entitlement

If an employee returns to work after 26 weeks of maternity leave or less (known as ordinary maternity leave (OML)), they are entitled to return to the same job on the same terms and conditions as before the maternity leave (section 71 Employment Rights Act 1996 (ERA 1996)). This right is protected unless a redundancy situation has arisen (see Section 3 below for information about the rights of employees on maternity leave during a redundancy situation).

If the employee takes AML (more than 26 weeks), they still have the right to return to the same job. However, if it is not reasonably practicable for the employer to offer the same job, they must provide a suitable alternative role with equivalent terms and conditions (section 73 ERA 1996).

2.1.2 Suitable alternative role

In situations where the employee’s original position is no longer available due to organisational changes, the employer must offer a suitable alternative role. This role should be on terms and conditions no less favourable than those of the original job. Failure to provide a suitable alternative can be considered unfair dismissal and may lead to claims of maternity discrimination. For further information about unfair dismissal generally, see How-to guide: How to carry out a fair termination of employment.

2.2 Flexible working requests

Balancing work and family responsibilities is a common concern for employees who are returning from maternity leave, which may lead to flexible working requests.

2.2.1 Eligibility and application process

All employees have the right to request flexible working arrangements from day one of employment (section 80F ERA 1996). This can include changes to working hours or days, or the possibility of working from home. The request must be made in writing, detailing the proposed changes and how they might impact the business.

2.2.2 Employer’s duty to consider

Employers are legally obligated to consider flexible working requests in a reasonable manner. They must assess the advantages and disadvantages of the application, discuss the request with the employee and notify them of the decision within three months. While employers can refuse requests on specific business grounds set out at section 80G(1)(b) ERA 1996 – such as additional costs or impact on performance – they must provide a clear explanation for any refusal.

2.3 Breastfeeding support

Supporting breastfeeding mothers upon their return to work is both a legal obligation and a best practice that promotes employee well-being (see for instance regulation 25 of the Workplace (Health Safety and Welfare) Regulations 1992).

2.3.1. Workplace facilities

Employers are encouraged to provide suitable facilities for breastfeeding mothers to express and store milk. While there is no explicit legal requirement to provide these facilities, failure to do so may be considered discriminatory under the EqA 2010. Providing a private, clean space (not a toilet) and access to refrigeration can facilitate this process.

2.3.2 Break entitlements

Although there is no statutory right to additional breaks for breastfeeding mothers, employers should consider allowing flexible break times to accommodate the need to express milk. This approach aligns with health and safety obligations and fosters a supportive work environment.

2.4 Practical considerations for employers

To facilitate a smooth transition back to work, employers should consider implementing supportive measures that address the unique needs of returning mothers.

2.4.1 Keeping in touch days

Employees can work up to 10 Keeping in Touch (KIT) days during their maternity leave without ending their entitlement to maternity leave and pay (regulation 12A of the Maternity and Parental Leave etc. Regulations 1999). These days can be used for training, meetings or to ease the transition back to work. Both parties must agree on the use of KIT days, including the type of work and payment.

2.4.2 Phased return to work

Offering a phased return to work, such as part-time hours initially, can help employees adjust while managing family responsibilities.

2.4.3 Communication and support

Maintaining open lines of communication during maternity leave and upon return fosters a supportive environment. Regular updates about workplace developments and providing access to resources can help employees feel valued and engaged.

Section 3 – Redundancy and restructuring

Employees on maternity leave are granted specific protections under UK employment law to safeguard their positions during redundancy scenarios. For general information about redundancy, see Checklist: Conducting a redundancy exercise.

3.1 Protection during maternity leave

The protections given to employees on maternity leave are set out below.

3.1.1 Priority for suitable alternative employment

In redundancy situations, employees on maternity leave are entitled to preferential treatment concerning suitable alternative employment (regulation 10 of the Maternity and Parental Leave etc. Regulations 1999). If a suitable vacancy exists within the organisation or an associated entity, it must be offered to the employee on maternity leave before being offered to other employees.

3.1.2 Consultation obligations

Employers are legally obligated to consult with employees affected by potential redundancies, including those on maternity leave. Effective consultation involves:

Timely communication: initiating discussions as soon as redundancy considerations arise, ensuring the employee is fully informed.
Inclusive participation: providing opportunities for the employee to engage in the consultation process, express concerns and suggest alternatives.
Documentation: keeping detailed records of all communications and meetings to demonstrate compliance with legal obligations.

Failure to consult appropriately can render a redundancy dismissal unfair and may constitute maternity discrimination. Employers should carefully consider how to include employees in any redundancy consultation, notwithstanding that they are on maternity leave.

3.2. Selection criteria

Establishing fair and non-discriminatory selection criteria is crucial in redundancy processes to ensure compliance with employment law and to uphold organisational integrity.

3.2.1 Avoiding discriminatory practices

Employers must ensure that selection criteria do not directly or indirectly discriminate against employees on maternity leave, or those who may have taken maternity leave in the past. An example of discriminatory criteria could include:

Absence records: using attendance records as a criterion can indirectly discriminate against employees who have taken maternity leave. Employers should exclude maternity-related absences from consideration.
Length of service: relying solely on length of service (‘last in, first out’) can disadvantage younger employees or those who have taken career breaks for maternity, potentially constituting indirect discrimination.
Performance evaluations: basing decisions on performance reviews conducted during or immediately after maternity leave can be unfair, as the employee may not have had the opportunity to demonstrate their capabilities fully.

3.2.2 Objective criteria

Implementing objective and measurable selection criteria is essential to ensure fairness and transparency. Such criteria may include:

Skills and qualifications: assessing employees based on relevant skills, certifications and qualifications pertinent to the organisation’s needs.
Work performance: evaluating employees based on documented performance metrics, ensuring that assessments are current and free from bias.
Disciplinary records: considering formal disciplinary records, provided they are relevant and have been applied consistently across the workforce.

Section 4 – Practical considerations

Navigating pregnancy and maternity in the workplace requires thoughtful, well-documented processes to support employees and protect the organisation.

4.1 Manager training

Line managers are often the first point of contact and should be equipped with practical knowledge of legal entitlements and organisational policies. This includes:

providing training on legal obligations regarding maternity, including the EqA 2010 and statutory rights to leave and pay;
including case studies to highlight the risks of discrimination, unconscious bias and inappropriate comments; and
emphasising the importance of neutral language and supportive communication.

4.2 Policy development and accessibility

Every organisation should have a clear and comprehensive maternity policy, supported by related procedures for flexible working and other parental rights such as parental leave and shared parental leave. This includes:

ensuring policies are legally up to date and reflect internal practices;
including clear steps on notification, entitlements, KIT days and returning to work; and
making policies accessible on the intranet or in employee handbooks.

4.3 Documentation and record-keeping

Accurate record-keeping is critical in managing maternity rights and protecting against potential claims of discrimination or unfair treatment.

4.3.1 Maternity leave and pay records

Employers should ensure that they:

maintain clear records of the dates maternity leave starts and ends, including any KIT days used; and
ensure payroll documentation reflects statutory and contractual maternity pay entitlements.

4.3.2 Risk assessment records

To minimise the risk of discrimination claims and comply with health and safety requirements (see for instance the Health and Safety at Work Act 1974; the Management of Health and Safety at Work Regulations 1999 and also hse.gov.uk), employers should:

conduct and document pregnancy-specific health and safety risk assessments as soon as an employee notifies the employer of pregnancy; and
review assessments regularly as the pregnancy progresses or if the employee’s role changes.

4.3.3 Flexible working and return-to-work agreements

When an employee makes a flexible working request, it is important to:

document flexible working requests and the employer’s decision, including any reasons for refusal; and
record agreements on phased returns to work, altered hours or changes to duties.

4.4 Communication with employees

Clear, consistent and timely communication is vital before, during and after maternity leave.

4.4.1 Pre-leave planning

Employers should:

arrange a meeting to discuss entitlements, expected dates and options for KIT days; and
provide written confirmation of maternity leave arrangements, including statutory or enhanced pay.

4.4.2 Keeping in touch during leave

This is important to avoid employees feeling isolated from the workplace and also to ensure that employees can apply for vacancies or participate in any workplace initiatives they want to be involved in. Practical steps include:

agreeing preferred methods of contact (email, phone, meetings); and
keeping the employee informed about significant workplace developments, redundancies or promotions.

4.4.3 Return-to-work planning

Arrange a return-to-work meeting in advance and confirm details of the employee’s role, hours and any changes during their absence.

4.5 Adjustments and support measures

Where needed, consider temporary adjustments to working conditions:

adjust workloads or duties if health or pregnancy-related symptoms make certain tasks unsuitable;
consider adjustments to shift patterns, travel requirements or the physical environment; and
if adjustments are not possible, a suspension on maternity grounds may be required, with full pay.