Maternity Action is the UK’s leading maternity rights charity. They have recently released an important report entitled Unfair Redundancies During Pregnancy, Maternity Leave and Return to Work, as part of their campaign to end unfair redundancies for pregnant women and new mothers.

The statistics they report are alarming. They say one in every 20 women who take maternity leave are made redundant during their pregnancy, on their maternity leave or on their return. The report cites EHRC research, which found that 77% of pregnant women and new mothers experienced discrimination or negative experiences during pregnancy, maternity and/or on their return from maternity leave.

In January 2017, the Government announced that they were adopting a ‘zero tolerance’ approach to pregnancy discrimination in the workplace . They promised a consultation on how to protect mothers from losing their jobs. At the time of writing however, little to no action has been taken. Officials from the Department for Business, Energy and Industrial Strategy (BEIS) have advised that there are no plans for legislative change. They have said that they are looking for ‘other ideas’ to address the problem.

Maternity Action has called for the current legal protections for new and expectant mothers to be radically rethought. They recommend removing much of the complexity in the current law, making it easier for both employers and employees to understand.

What makes redundancies during or after pregnancy ‘unfair’?

The report cites a variety of scenarios in which redundancies are being carried out ‘unfairly’ during or after pregnancy. This includes situations where women are required to partake in stressful redundancy selection processes during their pregnancy. This can clearly impact the mother and baby’s general health and wellbeing. Indeed, many women worry that their pregnancy will affect the decisions that are made by their employer, about who is put at risk of redundancy. They fear that they will be viewed or assessed less favourably during the application and interview processes.

As the law currently stands, employers must put women on maternity leave who are at risk of redundancy, to the front of the queue for any suitable vacancies, without having to compete with other colleagues at risk. However, this advantage (afforded by Regulation 10 of the Maternity and Parental Leave Regulations 1999) only applies to the mother during their maternity leave and not outside that period. Therefore, women who are pregnant, and those who have recently returned from maternity leave, do not get this protection. This distinction can confuse employers and mothers alike, especially when redundancy processes overlap the start of a pregnant employee’s maternity leave.

As new mothers lose the legal protection they had during their maternity period when they return to work, their position can become vulnerable for a number of months. For example, some mothers have found they have been made ‘redundant’ after requesting more flexible working arrangements to meet their childcare needs. Employers may not have adequate systems in place to accommodate employees with parenting responsibilities. Many new mothers can feel intimidated or reluctant to request these arrangements, if they perceive it will jeopardise their position in the company.

The report states that some ‘redundancies’ which take place upon the employees return to work, are not actually genuine redundancies. The mother has in reality been unfairly dismissed or been discriminated against even though their employer has purported to label their dismissal a ‘redundancy.’

What does Maternity Action say can be done to tackle the problem?

The report suggests:

‘To provide women with effective legal protection against unfair redundancy during pregnancy and new motherhood, the law should be simple and easy for women and their employers to understand, should be consistent across pregnancy, maternity leave and return to work, and should remove the obligation on individual women to prove unfavourable treatment by their employer.’

Maternity Action advocates for the UK to adopt the same legislative model for redundancy protection as Germany, where it is unlawful for employers to make women redundant at all while they are pregnant, on maternity leave, or have just returned to work. Very limited exceptions apply, such as if the entire business is closing.

However, it is unlikely the UK Government will adopt such a radical approach to reform. As an interim measure, the report has suggested that as a first step they may extend the current protections provided by Regulation 10 (see above) to women on maternity leave, to pregnant women and those who have returned to work from maternity leave in the past 6 months.

What next?

The report is not without its critics. Some practitioners question the validity of the report’s findings, on the basis that many of the problems highlighted are as a result of women’s perceptions of how they are treated, not established cases of unlawful treatment by employers. For example, the report says that many women ‘feel’ forced out of their roles, or that they ‘perceive’ they have been treated less favourably during application and interview processes, but there is no analysis of whether their employer genuinely discriminated against them on the basis of their pregnancy, or whether there were other contributory factors.

It is argued that this ‘shaky factual premise’ justifies the Government’s reluctance to bring in legislative change to address the issues cited in the report.

It has also been said that the very fact that three quarters of mothers perceive that they are placed at a disadvantage on the basis of their pregnancy, is in itself extremely damaging. It can be enormously difficult to prove that employers have made a redundancy decision on the basis of the pregnancy alone and women may still fear that having a child will impact their career. This in itself will influence their own expectations of returning to the workforce. Many have experienced negative attitudes to pregnant women and new mothers in the workplace, and these views may manifest themselves in discriminatory decisions.

It is worth keeping in mind, that pregnant women and new mothers do have protection against sex discrimination under the Equality Act 2010. Employees will have a claim if it can be shown that they have been treated less favorably on the grounds of their pregnancy or because they want to take/have taken maternity leave. Discrimination claims are very fact specific, but there may be grounds for a claim where a pregnant woman or mother has been directly or indirectly discriminated against.

Similarly, many mothers who decide to work part-time after their pregnancy can find certain protections under the Part-Time Workers Regulations 2000. The Regulations make it unlawful for part-time workers to be treated less favorably than full-time workers, and many new mothers can rely on them to facilitate them taking on more child-friendly working hours.

Whether the report will have an impact on Government thinking is yet unknown. We will have to wait and see what ‘other ideas’ are brought forward to address the issue. But this is definitely an important area to watch for 2018.