In workplaces that pride themselves on fairness and inclusion, it’s easy to assume that discrimination against pregnant employees and new mothers is a thing of the past.  The reality is more complex.  While overt bias may be on the decline, unconscious discrimination, the kind that operates subtly, often without malicious intent remains deeply entrenched, particularly in matters involving pregnancy and maternity leave.

The case of Ms Sarah Lindup v Bright HR Ltd (April 2025) offers a compelling example of how unconscious bias during maternity leave can manifest in discrimination.  Ms Lindup, a high-performing sales professional, was assured a return to her original team following maternity leave.  However, upon her return, the Claimant stated that she was laughed at and offered a position with disastrous personal consequences for her income/remuneration.  The employers’ actions appear not only discriminatory but also rooted in unconscious assumptions about her capability and commitment as a new mother.  This case underscores the subtle yet damaging ways bias can influence workplace decisions, even when not overtly expressed, and highlights the importance of safeguarding maternity rights through consistent, bias-aware practices.

Protection on paper – the legal context

In England and Wales, pregnancy and maternity are protected characteristics under the Equality Act 2010.  Women are safeguarded from unfavourable treatment from:

• the moment they become pregnant until they return to work after maternity leave (and any period of additional maternity leave); or
• two weeks after the end of their pregnancy if they are not entitled to maternity leave.

Yet, statistics tell a troubling story.  According to the Equality and Commission Human Rights report on pregnancy and maternity discrimination in the workplace: recommendations for change, 77% of mothers say they experienced negative or potentially discriminatory treatment during pregnancy, maternity leave, or on return to work.  Clearly, legal protections alone are not enough.

What does unconscious bias look like?

Unconscious bias refers to attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.  In pregnancy and maternity contexts, these biases often surface in the form of:

• Assumptions about commitment or capability: managers may unconsciously assume that a pregnant employee is less committed or that her priorities have shifted permanently.
• Paternalistic behaviour: colleagues may exclude a pregnant employee from projects to ‘lighten her load’ without consultation.
• Promotion hesitancy: decision-makers may delay or avoid offering new opportunities to employees who are pregnant or have recently returned from leave.
• Flexibility stigma: requests for flexible or part-time working may be perceived as a lack of ambition.

While often well-intentioned and in an attempt to be supportive, these behaviours can amount to discrimination in law and materially affect a women’s career trajectory.

The hidden cost of bias

Unconscious bias not only undermines legal rights, it also damages retention, productivity, and workplace morale.  When women feel they are being treated differently due to pregnancy or maternity states, it contributes to:

• Attrition of female talent particularly in mid-career stages.
• Widening gender pay gaps, especially post-parenthood.
• Loss of institutional knowledge as skilled professionals leave due to lack of support or opportunity.

These outcomes are not just problematic for affected individuals; they represent a strategic failure for organisations committed to diversity and equity.  Over time, these patterns result in the maternal wall, a systemic disadvantage that limits career progressions and widens the gender pay gap.

The legal risk – unconscious but actionable

Employers often misunderstand unconscious bias as a social issue rather than a legal one.  Employment Tribunals assess the effect of behaviour, not the intent behind it.  Therefore, employers can be found liable for discriminatory acts even if the decision-maker was unaware of their own bias.

Employment Tribunals have held employers accountable for failing to consider a women on maternity leave for promotion, for reassigning duties without consultation, or for allowing performance concerns to be exaggerated after pregnancy disclosure.

Turning awareness into action

Tacking unconscious maternity bias requires more than raising awareness, it demands structural and cultural change.  Organisations should focus on proactive, structural solutions:

1. Training with purpose: Managers must understand how bias specifically manifests around pregnancy and maternity and how to avoid it – general bias training is not enough.
2. Create checklists for key decisions: recruitment, performance, redundancy, and project allocation should be supported by bias-aware frameworks.
3. Reintegration: ensure those returning from maternity leave have access to the same opportunities as before whether that’s workflows, promotion paths or professional development.
4. Flexible working: reasonable consideration of flexible working requests and encourage uptake across all genders to reduce stigma and ensure parenting is not a career liability.
5. Collect and act on data: monitor outcomes for pregnant employees and those returning from maternity leave, progression, retention, engagement so issues can be addressed systematically, not reactively.

It’s easy to celebrate a new maternity policy or a flexible working announcement.  It’s harder and necessary to confront the underlying attitudes that derail women’s careers during and after pregnancy.  Unconscious bias may be invisible but its impact is far-reaching.  It shapes decisions, curtails careers and reinforces workplace inequality often without anyone realising.  But with legal risks rising and employee expectations shifting, employers can no longer afford to treat unconscious bias as a footnote to policy.

It is time to flatten labour pains. That means recognising bias, reworking structures and giving pregnancy and maternity equity not just the empathy they deserve.  Progress isn’t about avoiding legal missteps, it’s about building a workplace that truly works for everyone, at every stage of life.

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.