The Chair of the Women and Equalities Committee has tabled a 10-minute Rule Bill seeking to introduce similar redundancy protections for pregnant employees and new mothers as currently exist in Germany. We take a look at the Bill and how this would apply in practice below.
Under current redundancy procedures, there is no prohibition on fairly selecting a pregnant employee or new mother for redundancy, although there are certain extra protections that employers will need to take into account.
The normal rules around warning and consultation apply equally to those who are not currently working because they are on maternity leave. Those who are on maternity leave also have an additional right to be offered a suitable alternative role in advance of their colleagues who are not absent from work on family leave; in reality, they are treated preferentially to others. Failing to offer alternative roles, where available and suitable, will make a redundancy dismissal automatically unfair. This greater right ends when the employee returns to work, however, and then the new mother can be treated as if they were a normal employee under any future redundancy processes.
Where a number of individuals carrying out similar roles are at risk of redundancy and a decision is made to make the woman redundant because she is pregnant, has given birth, is taking or has requested to take maternity leave, or is on maternity suspension, this will be classed as an automatic unfair dismissal.
Under the Equality Act 2010, there is also discrimination protection in place for female employees who are protected against unfavourable treatment on the grounds of their pregnancy and maternity, or less favourable treatment due to their sex. This can provide additional protection in cases where redundancy selection criteria are discriminatory, for example, where criteria include workplace absences, and an employer takes into account maternity leave absences in order to select new mothers to be dismissed on the grounds of redundancy.
Although these protections exist, the statistics show a different story for the workplace realities of pregnant women or new mothers. Indeed, research in 2016 by the Department for Business, Energy and Industrial Strategy (BEIS) found that one in nine women were dismissed, or faced redundancy, once their maternity leave ended. This totalled an estimated 54,000 women who may lose their job each year because they have been pregnant or have taken maternity leave.
A later review by the charity Maternity Action highlighted that one in 20 women, or 6% of all pregnant women and new mothers, are made redundant either during their pregnancy at some point in their maternity leave or on their return to work.
The Private Member’s Bill
Following the BEIS research, the Government committed to reviewing the existing redundancy protections, with the aim of analysing whether these were providing sufficient protection in practice. A consultation was carried out between January and April 2019 which contained proposals to extend the existing time period for protection to end six months after the employee returns from maternity leave, rather than ending once they return. This would, in effect, create an extended protection period which commences with the employee’s pregnancy.
The Chair of the Women and Equalities Committee, Maria Miller MP, has gone one step further than the Government when introducing her Private Member’s Bill. The Pregnancy and Maternity (Redundancy Protection) Bill 2019 was introduced to the House of Commons in May 2019 and looks to prevent organisations from making female employees redundant from the start of their pregnancy, through maternity leave, until six months after this ends unless limited circumstances apply.
Implications for employers
Echoing certain provisions which apply in German employment law, the new Bill would prevent an employer from selecting female employees for redundancy during an extended period. This period would commence from the date the employee informs their employer that they are pregnant until six months after the end of their maternity leave period. If introduced, this would essentially place pregnant women and new mothers in a position where they are protected against redundancy even though they have returned to work.
The statistics on the number of new mothers who are selected for redundancy show that retention rates for new mothers are low as current provisions do not prevent employers from making dismissal decisions once they return to work. Whether this is because they are fairly selected, or because the implications of a new baby result in an unfair selection process being followed is unclear. Common reasons may include where their employer believes that they are going to take additional time out of the workplace for childcare reasons or because they begin to question their commitment towards the business going forwards. Such assumptions or stereotypes may lead towards returning mothers facing a redundancy decision regardless of how well they are placed in the selection process.
There will be exceptions to this prohibition, however. Alongside dismissals for the other potentially fair reasons, such as where the returning employee commits an act of gross misconduct, a redundancy dismissal could also occur. This will only be in circumstances where the employer ceases to carry on business in the location where the particular employee is employed, for example, a redundancy situation caused by a specific site closure or a whole business closure. In these circumstances, a redundancy dismissal could lawfully occur, although the employer will remain bound by current redundancy rules and processes, including offering suitable alternative employment where appropriate.
It is likely that this change will place employers in a position where they are require to prove that the exemption existed when a redundancy decision is made, or that any other dismissal was not influenced by the employee’s pregnancy or maternity leave. The new Bill allows enforcement through employment tribunals as a claim for automatic unfair dismissal.
Recently, it has been seen that the number of employment tribunal claims from pregnant staff or new mothers has increased significantly, no doubt helped by the removal of employment tribunal fees. In 2017/18, Ministry of Justice figures show that 1357 claims related to pregnancy were brought by claimants — an increase of 56% from 2016/17. This clearly rings a warning bell to employers that employees are becoming more aware of their rights in relation to pregnancy and maternity, and are perhaps finding it easier to enforce these through the tribunal. This does not address the initial issue, however, that employers may be treating their staff unfairly during or following their pregnancy and maternity leave.
As a Private Member’s Bill, there is no guarantee that the Bill will be implemented, although it will proceed to a Second Reading in the House of Commons. For now, most employers should remain up to date with the Government’s consultation and whether there will be any movement to extend the redundancy protection period, while becoming more aware of the particular rights and protections a pregnant woman or new mother has in order to prevent themselves being in a position where they treat staff unlawfully.
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Last reviewed 3 July 2019