The UK Government has published a consultation paper on extending protection from redundancy for women during pregnancy, women who have returned to work after maternity leave, and new parents.

Author: Lucy Lewis

Firm: Lewis Silkin LLP

Why is this being proposed?

The UK Women and Equalities Parliamentary Select Committee (‘WESC’) had recommended that there should be additional protection from redundancy for new and expectant mothers in its 2016 report on pregnancy and maternity discrimination. The WESC expressed particular concern about women being forced out of their jobs after maternity leave. 11% of women surveyed reported being either dismissed, made compulsorily redundant where others in their workplace were not, or treated so poorly that they felt they had to leave their job.

Separately, an Equality and Human Rights Commission survey in 2017 of over 1,000 decision-makers in business had found around a third of private-sector employers agreed that it was reasonable to ask women about their plans to have children in the future during recruitment. The Taylor Review of modern working practices published in August 2017 had also noted that legislation on pregnancy and maternity is complex and difficult for businesses to understand.

Against this background, the Government says that there is a clear case to create a more consistent approach throughout pregnancy, maternity leave and for a period of return. The new consultation paper suggests that the simplest way of achieving additional protection and creating greater consistency is to extend the scope of the current protection against redundancy.

What is the proposal?

Women on maternity leave currently have special protection in a redundancy situation. Under the Maternity and Parental Leave etc Regulations 1999, employers have an obligation to offer women on maternity leave a suitable alternative vacancy where one is available. This gives woman on maternity leave priority over other employees who are also at risk of redundancy.

Proposals to extend this protection are set out in the consultation paper. It seeks views on whether protection should be extended throughout pregnancy and for a period after the woman returns to work, and whether this should also apply to parents who have taken other types of leave.

The main proposal involves simply extending the existing obligation to offer a suitable alternative vacancy. The consultation proposes that protection should start as soon as an employee informs her employer in writing that she is pregnant. Protection would then continue for six months after she returns to work, as that is a long enough period to allow a new mother to re-establish herself in the workplace.

In relation to applying this extended right to other types of family leave, the consultation paper recognises that this may be complex due to the variety of different types of leave and the ability of parents to share some of this leave between them. The paper notes that other groups who have taken leave may experience unfair treatment in the return-to-work period in the same way that some new mothers do, but poses questions rather than putting forward any firm proposals. The Government is intending to form a technical task group to work through these issues.

What is not being proposed?

The WESC had gone further in its recommendations, stating:

‘We are persuaded that additional protection from redundancy for new and expectant mothers is required. The Government should implement a system similar to that used in Germany under which such women can be made redundant only in specified circumstances. This protection should apply throughout pregnancy and maternity leave and for six months afterwards. The Government should implement this change within the next two years.’

Under the German system, an employer is not allowed to dismiss a woman during pregnancy without first securing consent from the competent public authorities, and this protection continues until four months after the birth. The authority will grant consent to the dismissal only in exceptional circumstances and a dismissal without consent is automatically invalid.

The Government has rejected this suggestion, saying that it would run counter to the current UK system of enforcement of individual employment rights and the role of Employment Tribunals. It is certainly the case that no other aspect of the employment relationship is regulated in this way in the UK.

The WESC had also suggested that the three-month time limit for bringing a claim in pregnancy and maternity discrimination cases should be extended to six months, in recognition of the difficulties women face in bringing a claim shortly after giving birth, a recommendation that had already been made by the Justice Commission. There is no firm proposal to do this in the consultation paper, which notes that time can already be extended in discrimination cases where it is ‘just and equitable’ to do so. The paper does not rule this out altogether, noting that the Government has committed to consult on the evidence for changing time limits for claims relating to discrimination. There is also a separate consultation process ongoing at the moment by the Law Commission on reform of employment law hearing structures, which includes consideration of time limits.

Implications

The Government currently seems committed to extending protection to women while they are pregnant and for six months after they return to work from maternity leave, so it will be interesting to see the outcome of the consultation process.

For employers, the main concern may be the length of time for which women will have enhanced rights during any redundancy process. At the moment, this lasts throughout maternity leave – so generally a maximum of 12 months. Assuming most women would inform their employer about pregnancy after 12 weeks, the proposed extension would double the period of protection to up to two years. 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.

The issue of how this principle might be applied to other types of family-related leave is complex. The consultation paper suggests adoption leave, shared parental leave (‘SPL’) and longer periods of parental leave.

Adoption leave may be relatively straightforward, as this broadly mirrors maternity leave. SPL, however, is more difficult. In principle, it makes sense to provide similar protection, if only to encourage male partners in particular to take longer periods of leave. But SPL can be taken in non-continuous blocks of time. How would the return-to-work protection operate when someone may be entering and leaving work a number of times? With shorter periods of leave, particularly parental leave, it may also be possible for an employee to book this on relatively short notice in order to gain an advantage during an impending redundancy process.

The consultation process is open until 5 April 2019, so we can expect to see the Government’s response to these and other issues sometime after that.