A female student is protected even when her baby is stillborn, so long as she was pregnant for at least 24 weeks before she gave birth.
4.38
The unfavourable treatment will be pregnancy and maternity discrimination if the female student would not have received the treatment but for the fact that she is or has been pregnant, has given birth within the previous 26 weeks or is breastfeeding a baby that is not more than 26 weeks old.
What does ‘unfavourable’ mean? 4.39
For pregnancy and maternity discrimination to occur, a female student must have been treated ‘unfavourably’. This means that she must be put at a disadvantage. If the disadvantage is obvious, it will be clear that the treatment has been unfavourable: for example, she may have been denied education or given a poorer service. Not being admitted, being denied a choice or an opportunity or being excluded is also likely to be unfavourable treatment. Even if an education provider thinks that they are acting in the best interests of a pregnant student or a female student who has recently given birth they may still be treating the student unfavourably.
What does ‘because’ mean in relation to pregnancy or maternity? 4.40
‘Because’ in this context should be understood in the same way as ‘because of’ discussed above in relation to direct discrimination (paragraphs 4.11–4.17). Pregnancy and maternity needs to be a cause of the unfavourable treatment but does not need to be the only or even the main cause.
Example: A pregnant student on a forestry course at an FE college is told to stay at home on the day when some practical work is planned which involves training in the use of cutting tools and lessons in safe tree climbing. No risk assessment has been carried out. Although the college may think they are acting in the best interests of the student, she is being denied the opportunity to undertake practical work and this may be unlawful pregnancy and maternity discrimination.
Direct discrimination
4.41
The motive of the education provider is irrelevant, and it does not matter if the unfavourable treatment is conscious or unconscious.
4.42
Pregnancy and maternity discrimination includes unfavourable treatment of a student based on a stereotype, whether or not the stereotype is accurate.
4.43
Another way to identify whether pregnancy or maternity is a cause of the unfavourable treatment is to ask ‘but for the female student being pregnant or recently having given birth would she have been treated in that way?’
Direct sex discrimination: pregnancy and maternity 4.44
Treating a female student less favourably because she is breastfeeding a baby who is more than 26 weeks old amounts to direct sex discrimination.
4.45
The direct sex discrimination provisions apply, and the special provisions for pregnancy and maternity discussed above do not apply, when a student is breastfeeding a child more than 26 weeks old.
Example: A student who has recently given birth is denied the opportunity to undertake a PhD which involves overseas research
because the university believes it will be too difficult for her to travel and complete the research with a small baby. This may be unlawful
pregnancy and maternity discrimination based on a stereotype.
Example:A woman applies for a place at her local college for a catering course, and mentions that she is pregnant. She is subsequently refused a place on the catering course, and is told that there are concerns about her attendance and completion of the course due to her pregnancy. Although the refusal is because of these reasons, the effective cause of that
assessment is her pregnancy and it would therefore be unlawful pregnancy and maternity discrimination.
s13(6)(a)
66
Direct discrimination
4.46Where the claim is direct sex discrimination she will need to show that she has been treated less favourably than others are or would be treated in comparable circumstances and so a comparator will need to be identified. If a hypothetical comparator is used, it would be to establish how the student herself would have been treated were she not breastfeeding. (For a fuller discussion of comparators see paragraphs 4.21–4.31.)
4.47
In considering discrimination against a male student, it is not relevant to take into account any special treatment given to a female student in connection with pregnancy or childbirth. (The time limits that define pregnancy and maternity discrimination do not apply here.)
Exceptions for pregnancy or maternity 4.48
See Chapter 14 for the limited circumstances in which an education provider may treat a female student differently because of pregnancy or maternity, by refusing to make a particular provision or making it conditionally.
Example: A student who is breastfeeding her eight-month-old child is asked to leave a university cafeteria and feed her baby in the toilets as she is offending other students. The student could use herself as a hypothetical comparator to show that the reason for the unfavourable treatment is because she is breastfeeding. This would be direct sex discrimination.
Example:A university provides a private resting area for students who are pregnant or breastfeeding. A male student feeling tired complains that he does not have access to a similar facility. This is not
discrimination because a man cannot compare himself to a woman in connection with pregnancy or breastfeeding.
s13(6)(b)