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Pregnancy and Maternity discrimination: new consultation

The Government has published a new consultation on extending redundancy protection for pregnant women and new parents once they have returned to…

The government has published a new consultation on extending redundancy protection for pregnant women and new parents once they have returned to work. What is proposed has laudable intentions and may provide additional protections for pregnant employees and are on (or have recently been on) maternity leave. However the detail may concern some employers and, if implemented, may lead to some outcomes which cause concern.

The consultation takes its lead from key issues raised in the Women and Equalities Select Committee 2016 report and, more recently, the Taylor Review on modern working practices.

The paper sets out the current legal protections for pregnancy and maternity; asks how an extension of redundancy protection into a period of ‘return to work’ might work best; and asks whether similar extended protection should be afforded to other groups. The Government also invites input as to whether initiatives to raise awareness of pregnancy and maternity rights and obligations have been successful and how they might be improved.

The current legal position

Currently, the Equality Act 2010 sets out a ‘protected period’ during which women who are pregnant or who have recently given birth are explicitly protected from discrimination. This ‘protected period’ runs from the start of the pregnancy until the woman returns to work from ordinary or additional maternity leave (if she is entitled to either form of leave) or two weeks after the end of the pregnancy (if she is not entitled to maternity leave).

Once the protected period ends, it is still unlawful to treat a woman less favourably because of her pregnancy, maternity or breastfeeding. This might be because the less favourable treatment stems from a decision taken during the protected period, or because it may amount to sex discrimination.

In addition Regulation10 of the Maternity and Parental Leave etc. Regulations 2019 provides that, before making an employee on maternity leave redundant, employers have an obligation to offer them a suitable alternative vacancy, where one is available, as a priority over other employees. This protection applies while the woman is on ordinary or additional maternity leave.

What is proposed?

The consultation cites evidence assembled by the Women and Equalities Select Committee that new mothers are being forced out of work when they seek to return. The Government proposes that the simplest way of achieving additional protection and creating a consistent approach is to extend the scope of existing protection against redundancy for a period covering a new mother’s return to work. In summary, the consultation proposes to:

  • Define pregnancy for redundancy protection purposes as starting at the point when a woman informs her employer, in writing, that she is pregnant. However, views are invited as to whether a different reference point should be used;
  • Extend the current protection against redundancy for women on maternity leave for a period of 6 months following a new mother’s return to work (meaning that a women would have priority access to any suitable alternative vacancy for this whole period);
  • Offer this increased level of protection to returners from comparable forms of leave (such as adoption leave, shared parental leave and unpaid parental leave); and
  • Improve, if necessary, the advice and guidance available to employers and employees about the employment rights of pregnant women and new mothers.

The consultation document considers, and then (thankfully) seems to dismiss, the idea of introducing a German-style system of ‘state clearance’ for dismissal in the protected period (whereby an employer would not be allowed to dismiss a woman during pregnancy and for a specified period after birth without first securing consent from the competent public authorities) in favour of allowing employers a little more autonomy.

One obvious issue is how any extended period of redundancy protection would interact with the complex system of shared parental leave, which parents may choose to take in multiple discontinuous blocks. Another potential area of confusion is what should happen where a period of maternity leave is followed by annual leave or a career break. The Government intends to form a ‘technical task group’ to work through these ‘challenging questions’.

Regulation 10 and why it matters

Regulation 10 and the impact that it has, can be controversial and may result in outcomes which some employees may feel are unfair. It means that if three employees are at risk of redundancy because their roles have disappeared, and one new role is available which they can all do, the person on maternity leave automatically gets that role in preference to the other candidates (and irrespective of other factors such as skill, length of service, or disciplinary record). This current law is sometimes a surprise to employers and can have a significant impact upon reorganisations. Extending this additional protection to staff who have returned from leave in the last six months is likely to result in more situations where this potential perception of unfairness applies. In particular, you may face genuine challenge from the employees adversely affected if you select someone for an alternative role because they have taken a short period of shared parental leave five months before redundancy, in preference to other staff.

Have your say

The consultation closes on 5 April 2019.  The proposals suggest that the law will be changed, but at the moment that is not certain and we do not yet have any date from which the new law will apply.

Weightmans intends to respond to this consultation as a firm and on behalf of clients. Watch out for our short e-mail survey on this important issue and please do let us know your views. In the meantime, if you have any questions, please do not hesitate to get in touch.

If you have any questions about this potential change in the law or any concerns about how Regulation 10 currently works, please do not hesitate to contact us.

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