Direct sex discrimination

The two acts associated with pregnancy and maternity are the employment rights act 1996 and the sex discrimination act 1975. The sex discrimination states that a pregnant woman cannot be treated less favourable than a man or a non-pregnant woman. This is direct sex discrimination. An example of indirect sex discrimination would be if an employer applied a provision that to achieve an above average for an appraisal an employee must have no absence of more than three months. This indirectly affects a woman because she would need to take more than this time off for maternity leave.

This would be discriminatory unless the employee can prove it is detrimental to the business. To claim sex discrimination the woman must show that if it were not for her pregnancy she would not have been treated unfairly and less favourably than a male. However when it regards pregnancy it is not possible to compare to a male therefore if it is proven the treatment was directly related to pregnancy then it is automatically sex discrimination. In these cases the employer must prove that there were non-discriminatory reasons to the way the woman was treated otherwise it is ruled in favour of the woman.

The employment rights act 1996 protects expectant mothers and nursing mothers in regards to: health and safety, unlawful dismissal because of pregnancy or maternity related reasons, redundancy during maternity leave or maternity absence, the right to receive an accurate written statement of the reasons for dismissal during pregnancy or maternity leave. This act was amended in 2002. Every pregnant woman who has given proper notification regarding her pregnancy are entitled to the following. Reasonable time off with pay for antenatal care 26 weeks ordinary maternity leave six weeks full pay then 20 weeks statutory maternity pay

26 weeks additional maternity leave providing the woman has worked there 26 weeks by the 15th week before the expected due date. Maternity can be taken from 11 weeks before the due date. Any sickness related to pregnancy must be disregarded. Employers have a duty to protect the pregnant woman therefore a risk assessment is required. If after the risk assessment the woman cannot continue the job role she must be offered alternative positions no less favourable than her previous position, if this is not possible then she is entitled to suspend her work with full pay as long as necessary to avoid the risk.

Fialure to carry out a risk assessment, should an injury occur, this is direct sex discrimination. In the case of Rees v Apollo watch repairs plc 1999, Mrs Rees was a receptionist and was refused her job back after maternity leave because the company thought her replacement was more efficient. The court found that hers was a case of sex discrimination because, had she not took maternity leave then the employer would not have found a replacement. Her dismissal was found to be a direct consequence of her maternity leave.

A similar ruling was given in the Webb v Emo Air cargo Ltd 1995, Mrs Webb was employed as cover for maternity and was told she would be kept on, Mrs Webb found that she too was pregnant but was dismissed. The employer afgued that they would have treated a non- pregnant woman or a man the same and it was not the pregnancy but the unavailability to work which led to her dismissal. This was overturned and the courts decided that the dismissal of a pregnant woman on account of her pregnancy, for reasons connected with it was automatically sex discrimination without the need for comparison with a man or a non-pregnant woman and sick employee.

This was ruled because pregnancy cannot be equated with sickness or unavailability for work owing to sickness. These are just a couple of examples of how the sex discrimination act and employment rights act have protected women in employment with regards to pregnancy. These acts seem to really protect women during pregnancy; they make it difficult for the employer to discriminate against pregnant women, given that it is the employer who must disprove the allegations made.

This is extremely hard to do, especially if the employer is discriminating against the pregnant woman. This area was chosen because although women are discriminated against, regarding pay and employment status. It also happens during pregnancy, possible when a woman is at her most vulnerable, and much work is yet to be done there are steps taken to eliminate this oppression and in discussing rights in pregnancy is a good example of how times are changing.

Bibliography

  • http://news.bbc.co.uk/