By Lucy Lewis, Gemma Taylor 

Firm: Lewis Silkin LLP

Concrete plans to extend redundancy protection to pregnant women and employees who have recently returned from maternity and adoption leave have been published.

One of the parting shots of Theresa May’s Government has been to confirm its decision on plans to extend the right to be redeployed in an alternative role if facing redundancy to cover pregnant employees and those returning from maternity or adoption leave.

Background

Under the current law, women on maternity leave have special protection when their employer is making redundancies. They have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This gives employees on maternity leave priority access to redeployment opportunities over other redundant employees.

Earlier this year, the Department for Business, Energy and Industrial Strategy ran a consultation on extending redundancy protection to cover pregnant employees and those who have recently returned from maternity or other new parent leave. This followed concerns raised from many sources (including the Women and Equalities Committee) over new and expected mothers being forced out of their jobs because of discrimination.

Extending redundancy protection

Concrete plans for reform have now been published, which would extend the existing right to suitable alternative employment beyond employees on maternity leave to include:

  • pregnant employees, from the moment the employee informs her employer that she is pregnant, whether orally or in writing;
  • individuals returning to work following maternity leave, for six months following the end of the leave;
  • individuals returning to work following adoption leave, for six months following the end of the leave.

Proposals in relation to shared parental leave (‘SPL’) are still in the design phase. The consultation response accepts that it does not make sense to give a new parent six months’ redundancy protection after taking just a week of SPL, but there is nonetheless a plan to introduce some kind of protection that is proportionate to the threat of discrimination. The document points out, though, that a mother should be no worse off if she curtails her maternity leave and then takes a period of SPL.

It has been decided not to extend redundancy protection to employees taking paternity leave. This is because, at least in part, the purpose of the protection is to ensure that employers do not make an early judgment on performance in the first few months of someone returning to work after a long absence. That would not be the case with paternity leave.

Details of these new rights were published alongside a series of other consultations on employment issues released in the final days of Theresa May’s Government. No implementation date for the new redeployment rights was announced and, of course, the incoming administration led by new Prime Minister Boris Johnson will not necessarily decide to proceed with the plans.

Key implications for employers

If implemented, the reforms summarised above would double the period of redundancy protection for new and expected mothers to about two years (assuming they tell their employer about their pregnancy at 12 weeks, take a year of maternity leave, and are then protected for six months afterwards).

In our response to the consultation, we pointed out this could cause a practical headache for employers when running a redundancy exercise, particularly in a female-dominated workforce where there may be many employees who must be given priority for suitable alternative vacancies. In addition, women may feel under pressure to inform their employer about their pregnancy very early on (before their 12-week scan, for example) if there is an impending redundancy exercise.

From a policy perspective, however, there are strong arguments in favour of protecting new and expectant parents from discrimination and avoiding them having to compete for redeployment opportunities at a vulnerable time. Supporting working mothers in this way may also help close the gender pay gap. There are nonetheless likely to be individual instances where the rules will feel unfair to managers and employees on the ground, such as where it results in the loss of a particularly high-performing employee in favour of an employee with priority status. This will need to be managed carefully.