Equal pay - the law and best practice

Pregnant employees and those taking maternity leave enjoy a wide but complex range of legal rights that regulate their relationship with their employers and in some cases their prospective employers.

These legal rights primarily exist:

• to protect their health and safety and that of their expectant or new-born children
• to preserve the contractual terms and conditions of employment that they would have otherwise enjoyed if they had not been pregnant
• to help them to attain a more satisfactory work/life balance following their children's births
• to protect them from unlawful discrimination
• to generally promote their equality of opportunity in employment

Equality clause

An equality clause is implied into a woman's contract to ensure that she receives certain pay increases and contractual bonus payments when she is on maternity leave. There is no need to show equal work with a comparator in this situation.

The equality clause applies to:

• the calculation of contractual maternity-related pay
• bonus payments during maternity leave
• pay increases following maternity leave

During maternity leave a woman's entitlement to receive her usual contractual remuneration (that is, salary or other benefits with a transferable cash value such as a car allowance or luncheon vouchers) stops unless her contract provides for this.

However, she is entitled to any pay rise or contractual bonus payment (relating to the period of compulsory maternity leave) awarded during her maternity leave period, or that would have been awarded had she not been on maternity leave.

Any pay increase a woman receives or would have received had she not been on maternity leave must be taken into account in the calculation of her maternity-related pay.

Similarly, any pay or bonus related to the time before the maternity leave starts, during compulsory maternity leave, or after maternity leave ends, must be paid without delay. So if a woman becomes entitled to a contractual bonus for work she undertook before she went on maternity leave, she should receive it when it would have been paid had she not been on maternity leave.

On her return to work a woman should receive any pay increases which would have been paid to her had she not been on maternity leave.

Unfavourable treatment because of pregnancy or maternity in relation to non-contractual pay and benefits is covered by the employment discrimination provisions in the Sex Discrimination (NI) Order 1976.