Equality and Human Rights Commission

You have the right to equal pay and benefits when you are pregnant or on maternity leave.

Unlike other types of equal pay claim, there are two situations in which you do not have to identify a male comparator:

• where a pay rise to which you would have been entitled if you had not been on maternity leave was not taken into account when calculating your maternity pay
• where you have missed out on a contractual bonus in respect of a  period of time before or after your maternity leave 

However, in respect of all other types of claim, the Equal Pay Act still requires you to identify a male comparator. For example, if you miss out on holiday and other contractual benefits to which you were entitled whilst on maternity leave, you still have to identify a male doing like work, or work of equal value to you, who received these benefits in order to take a claim.

Bonuses

The law relating to bonuses and maternity leave is complicated and you may wish to seek further advice relevant to your situation.  The law in this area depends on whether your bonus is discretionary or contractual; and what it is awarded for.

Some bonuses and commission are contractual and, as such, form part of your pay. Like your contractual pay, you are not entitled to receive these during your ordinary or additional maternity leave, unless your contract or employer's maternity policy states otherwise. This would apply for example if each month you receive a bonus on top of your pay for the sales you have made in that period.

However, if your employer pays a contractual bonus in respect of a certain time period (for example an annual performance related or profit related bonus for the tax year 2005-2006), you are entitled to receive a pro rata bonus in respect of the time before and after you went on maternity leave. You are also entitled to receive the bonus for the period of compulsory maternity leave. This is the first 2 weeks of ordinary maternity leave (or 4 weeks if you work in a factory).

If you are denied the proportion of the bonus relating to when you were at work or on compulsory maternity leave, you would have a potential claim under the Equal Pay Act. The Equal Pay Act was amended on 1 October 2005 so that in this case you do not have to compare yourself to how a male was treated in order to take a claim (unlike other claims under the Equal Pay Act). For further information on this see Frequently Asked Questions.

Some bonuses are 'discretionary' and as such do not form part of your contractual pay. This is not always clear as even if your employer says that a bonus is 'discretionary', it may in fact be contractual for example if it is paid on a regular basis. If this is the case it would be treated in the same way as other contractual bonuses described above.

If your employer pays a discretionary 'one off' type bonus, this would not be said to be part of your contractual pay so you should receive it whether on ordinary or additional maternity leave.

If you do not receive the bonus because of your pregnancy or maternity leave, you may have a claim under the Sex Discrimination Act rather than the Equal Pay Act. For further information on taking a sex discrimination claim see our information on Pregnancy and Maternity.

The dividing line between claims that fall under the Equal Pay Act and claims that fall under the Sex Discrimination Act is unclear. Sometimes it is best to put both Acts on your employment tribunal claim form to be on the safe side. If you are uncertain you should seek further advice.

Remember that the time limit for lodging claims under the Sex Discrimination Act is 3 months, which is shorter than under the Equal Pay Act. See Pregnancy and Maternity for further information. 

Pay rises

When you are on maternity leave, you will be entitled to Statutory Maternity Pay (SMP) and, in some cases, contractual maternity pay. Some, or all of the pay you receive will be based on your normal average earnings.

If you are entitled to a pay rise from your employer during the period between when your maternity pay is calculated (for SMP this is the eight weeks leading up to and including the qualifying week) and the end of your maternity leave, this pay rise should be taken into account for the purposes of calculating your maternity pay.

If your employer fails to take the pay rise into account when calculating your maternity pay, you would have a potential claim under the Equal Pay Act. As with bonuses, for this type of case, you would not need to compare yourself to how a male was treated in order to take a claim.