The current law
The current legal framework provides a layer of protection for woman on maternity leave in a redundancy situation.
Under Regulation 10 of the Maternity and Parental Leave etc Regulations 1999, before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available.
In effect, this gives women on maternity leave priority over other employees at risk of redundancy.
The EHRC Code provides a practical example of when this protection might apply:
“A company decides to combine their head office and regional teams and create a “centre of excellence” in Manchester. A new organisation structure is drawn up which involves a reduction in headcount. The company intends that all employees should have the opportunity to apply for posts in the new structure. Those unsuccessful at interview will be made redundant. At the time this is implemented, one of the existing members of the team is on ordinary maternity leave. As such, she has a priority right to be offered a suitable available vacancy in the new organisation without having to go through the competitive interview process. (Paragraph 19.19, EHRC Code.)”
Proposals to expand the protection
Research published by the BEIS and the EHRC in 2016 suggests that pregnancy and maternity discrimination is still far too prevalent. Overall, three in four mothers (77%) said they had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave.
Serious concerns were expressed about the risk of both pregnant women and women returning to work feeling vulnerable and forced out of the workforce.
At the start of the year, the government consulted on whether to extend the current protection to women who are pregnant (and have notified their employer of their pregnancy) and to women who have recently returned to work following maternity leave.
The Women and Equalities Select Committee supported an expansion of the protection and urged the government to implement reform.
In July 2019, Theresa May’s government committed to implement reform and put forward plans in a government response paper.
The paper sets out a commitment to expand the protection:
- from the point the employee informs the employer that she is pregnant, whether orally or in writing;
- for a period of six months following a mother’s return to work from maternity leave;
- to adoption leave returners, for a period of six months following the end of adoption leave.
The paper also sets out the intention to expand the protection (in some form) to shared parental leave (“SPL”) returners; however, further work with stakeholders was needed to consider how this protection could be developed.
Development of protection following SPL will necessarily be more involved and complex given the practical and legal differences between maternity leave and SPL (for example, SPL can be taken in a number of forms such as for short periods, discontinuous blocks and combined with other leave). The government paper sets out a number of (proposed) principles and issues that will need to be considered when developing a suitable scheme for SPL returners. This included a statement that a mother should be “no worse off” if she curtails her maternity leave and then takes a period of SPL.The papers indicates that although parents returning from SPL should receive some protection this must be proportionate and expresses the view that, for example, a father returning from one week’s SPL should not be in exactly the same position as a mother returning from 12 months maternity leave.
In practical terms, if the new scheme is implemented as currently outlined, a women could benefit from the protection for up to a two year period. Whilst this may introduce challenges for employers undertaking restructures, the change would provide a more consistent approach to pregnant women, new mothers and those on maternity leave. Whilst some readers may have concerns that the change could lead pregnant women to feel under pressure to disclose a pregnancy, it is hoped that the new expanded protection would drive a more inclusive environment and support the participation of women and new parents in the labour market.
The paper indicates an intention to bring forward legislation “when Parliamentary time allows”. However, the response paper was published at the end of Theresa May’s government and it did not set down a timeline for reform. It remains to be seen whether the current administration decides to continue with these plans (at all) and if they do, whether the draft legislation will reflect the scheme outlined so far.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of August 16, 2019.