The Government is looking to extend the legal protection against redundancy, so that it continues for up to 6 months after new parents and pregnant women return to work. At present, The Equality Act 2010 states that there is a ‘protected period’ that protects pregnant women and new mothers from being discriminated against when they return to work. This period commences from the start of a woman’s pregnancy until she returns to work after maternity leave.
In 2016, the BEIS conducted research which showed that 1 in 9 women said they were either fired, made redundant or treated badly as a way of forcing them to leave their jobs when they returned to work after having a child. The same research revealed that as many as 54,000 women a year may lose their jobs due to pregnancy or maternity.
As the law currently stands, a woman whose job becomes redundant during her maternity leave period is entitled to be offered (as opposed to merely having the opportunity to apply for) a suitable available vacancy, where one is available with the employer or an associated employer. If an employer fails to comply with this obligation, any dismissal will be automatically unfair and probably, though not necessarily, discriminatory. This obligation currently only arises in connection with women actually on maternity leave: If the woman has returned to work, or has not yet gone on leave, then her employer is not under this strict obligation to offer her a suitable available vacancy in priority to others. It still has to take reasonable steps to find her alternative employment, as would be the case with other potentially redundant employees.
The consultation seeks views on whether to extend this right for up to six months after employees return to work from maternity leave. The Government sees this as the simplest way of achieving additional protection – so mothers who have recently returned to work have the same protection as those on maternity leave.
Peter Stanway, our BackupHR™ legal expert comments:
If these proposals are implemented, employers planning a redundancy exercise would need to ensure they have identified any maternity returners and other parents who have returned to work within the last six months, and that they are given first refusal on any suitable alternative roles.
It is unlikely that extending the period of prioritisation for maternity returners will be particularly difficult for employers administratively. But significantly for employers, this proposal will inevitably mean that there will be more redundancy processes where they may not be able to offer suitable alternative roles to the best candidates. This proposal adds no protection for maternity returners where no suitable alternative role is available, which is very often the case. Vacancies elsewhere in the group will have to be offered to the woman, if she can fill them adequately and even if she is far from the best candidate available, internally or externally.
It could be argued that a better approach to improving retention rates immediately post maternity leave would have been for the government to look at the price of childcare and the rules relating to flexible working. It can also be argued that the Government might have focused more on what can be done to reduce the number of women who are dismissed not long after announcing that they are pregnant. There is a pressure group named ‘pregnanthenscrewed’ which aims to support women in this invidious position.
As these proposals have not yet become law there is no need to take action just yet, but the following actions should help to keep you legal:
- Ensure that pregnant women are risk assessed early on for health & safety purposes
- Inform them of their rights and make them feel supported
- If redundancies arise be very careful not to disadvantage them, or women on maternity leave and make adjustments, whilst not being unfair to other employees.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.