Can men really be discriminated against on the grounds of pregnancy? The answer, thanks to provisions in the Equality Act 2010, is surprisingly yes.

This and other provisions contained in the Act – which came into force on October 1 – are turning the world of employment law on its head once again.

Under the new legislation there can be discrimination by association and the wording of Section 13 of the Act defines direct discrimination as less favourable treatment because of a protected characteristic.

This therefore places the protected characteristics in the mind of the person doing the discriminating rather than being an aspect of the person who has been discriminated against.

Stemming from this, it will be much more straightforward to show that discrimination occurs when you are treated less favourably because of your association with someone who has a protected characteristic.

An idiosyncratic example of the knock-on effect of the Act is discrimination on the grounds of pregnancy. It is direct discrimination if somebody treats someone less favourably because of the protected characteristic of pregnancy. The new Section 18 of the Equality Act provides for discrimination against women on maternity leave, pregnant or who are breast feeding. However, it is logical therefore that under Section 13 of the Act someone can be discriminated against on the grounds of pregnancy even if they themselves are not pregnant (discrimination by association). That means a man can claim pregnancy discrimination under Section 13 relating to the protected characteristic of pregnancy.

You might think this sounds outlandish but consider the scenario whereby an employer discovers that a male employee and his partner are expecting a baby. As a result of this, the employer thinks that the employee’s commitment to work will falter and he doesn’t think that his mind will be fully on the job. He might think that with less than one year’s service it is safe to dismiss him. From today, that male employee will be able to claim direct discrimination because of the protected characteristic of pregnancy.

By David Jones, Head of Employment at Kirwans