The Government’s recently announced proposals to extend redundancy protection to stop so many new parents losing their jobs illegally are unlikely to resolve the issue. Contributor Philip Richardson, Partner and Head of Employment Law – Stephensons
The Department for Business, Energy and Industrial Strategy (BEIS) has launched a consultation on extending legal protection to prevent new mums from being made redundant for up six months after they return to work from maternity leave.
It is also considering providing the same protections to parents returning from adoption leave or shared parental leave. The Government has also promised to look at evidence for changing employment tribunal time-limits so new parents have six months to bring claims relating to pregnancy and maternity.
Currently, employed women are entitled to take up to 52 weeks of maternity leave. Fathers also have a statutory right to paternity leave and pay. Women who are pregnant or have recently given birth are protected under the Equality Act 2010 and Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MAPLE).
They are protected from the start of their pregnancy until they return to work after maternity leave, or for two weeks after the end of their pregnancy if they are not entitled to maternity leave. If redundancies are being made while new parents are on maternity or shared parental leave, companies must offer a ‘suitable alternative vacancy’ if one is available and give them priority over others who are also at risk of redundancy. However, mothers can be made redundant while on maternity leave if there are no alternative roles available.
Once they have returned to work, or after the two-week period is up if they weren’t entitled to maternity leave in the first place, new mothers are no longer afforded the same protection. As the law currently stands, they can be placed in a redundancy situation and be treated the same as all other employees. At the moment, there is a time limit of three months for bringing a claim of pregnancy and maternity discrimination.
Despite these legal protections, research by the Equality and Human Rights Commission (EHRC) says that 54,000 women per year may be losing their jobs due to pregnancy or maternity annually. The same research suggested that one percent of mothers were made redundant while pregnant, three percent while on maternity leave and two percent on their return from maternity leave.
Whilst the new proposals to extend redundancy protection are a move in the
right direction, I have my doubts that they will be that effective. The fact that so many mothers are made redundant while they are on maternity leave and should be protected suggests that merely extending protection isn’t the answer.
Part of the problem is that many businesses are unclear exactly what rights pregnant women have and therefore do not approach redundancy, recruitment and promotion situations correctly. Sometimes they simply assume that they can let those staff go or they fail to consider them for promotion. Some believe the legislation is too complex. Businesses may simply not understand what they can and cannot do. Perhaps they choose to ignore the rules.
I think further work needs to be done to consolidate the law, to make it much easier for employers to understand how to approach and deal with new parents during the protection period. We have to hope that the Government will address this issue during the consultation period. Arguably, extending the current time limit for bringing a claim of pregnancy and maternity discrimination to six months may encourage more women to make a tribunal claim if they feel they have been unfairly treated.
Currently only 0.6 percent of victims raise a claim, though it is unclear whether this is because of the short time limits. The proposed increase in time limits might help as it will give new mothers longer to seek legal advice. But I think the best solution might be for the UK to adopt the German system where pregnant women and new mothers enjoy special protection against redundancy.
In Germany, an employer is not allowed to dismiss a woman during pregnancy without securing consent from the public authorities until four months after the birth of her child. A dismissal without consent is automatically invalid.
Without a doubt, this move would reduce the number of discrimination cases relating to pregnancy and maternity. When the Women and Equalities select committee of MPs was considering this issue last year, it called on the Government to adopt just this approach.
If the Government’s proposals are enacted as planned, business will need to be prepared for a likely rise in claims, which could have implications for SMEs in particular. Women made redundant within six months of returning to work may feel that their pregnancy and recent leave is behind it. They may issue proceedings regardless of the real reason for the redundancy. The costs of these proceedings can amount to thousands of pounds and some small business will struggle to meet these kind of bills. The consultation runs until 5 April this year.