Currently, the law states that where an employee on maternity leave, shared parental leave or adoption leave is to be made redundant, employers must first offer them a suitable alternative role, if one exists. This currently protects an employee during the maternity leave period, from notification of their pregnancy until the end of their maternity leave. A new Bill, currently being debated in the houses of parliament, seeks to extend this protection period to both before they start maternity leave, and when they return to work.
Why the proposed change?
The Department for Business, Energy and Strategy conducted a study in 2019 that found over 50,000 women each year lose their role because of pregnancy or maternity and over 75% of pregnant women and new mothers faced some sort of discrimination when they returned to the workplace. It has also been found that these issues only increased during the COVID-19 pandemic, with pregnant women or new mothers being singled out for redundancy or furlough.
What changes are proposed?
The government seeks to resolve these issues by increasing protection to avoid the discrimination that new parents can be victim to when they return to the workplace. It was announced on 21 October 2022 that the government will be backing this Bill, named the Protection from Redundancy (Pregnancy and Family Leave) Bill.
The Bill aims to extend the period of protection to start from the point at which the employee tells their employer that they are pregnant up until 18 months following the start of their maternity leave. This, in essence, can extend protection to individuals for 6 months following the return from maternity leave. Similar provisions will apply to those who are adopting or taking shared parental leave, again currently, this protection is only in place during the period of maternity leave period.
An important point, and one that has been misinterpreted by many commentators, is that the proposed extended period of protection does not prevent an employer from making an employee redundant. Redundancy can still be a potentially fair reason for terminating a contract and these changes will not affect that position. This does of course depend on the employer following a fair redundancy procedure. The government considered the redundancy point carefully and rejected the opportunity to include any wording deeming it automatically unfair to dismiss an individual during the protected period for redundancy.
Although on the face of it this Bill appears to greatly extend the protection, the charity Maternity Action has expressed they do not support the Bill, stating that it will only entrench a broken system that they know does not work to protect women. Maternity Action call for the protection to be increased to introduce a legal ban on making pregnant women or new mothers redundant at all (except in situations such as complete business close down). However, the former chair of the Women and Equalities Committee, Maria Miller MP, already proposed this as a bill in 2020, although it failed due to lack of government support.
Employers do not need to worry that they will never be able to make a pregnant women or new parent redundant as the law still stands that if a fair process was followed and the employee in the protected period was offered a suitable alternative role (if available), then this form of dismissal can still be fair. For employees, the increase in protection will be welcomed by many new parents as it brings a decrease in uncertainty as they start back at work and will hopefully be a step in the right direction to reduce the discrimination that many employees in this position face.
What does this mean for you or your business, and what do you need to be doing now?
The Bill is still being considered by the House of Commons and so will not come into force until next year at the earliest. For now, employers should continue to follow correct redundancy procedures, and the period of protection is currently limited to the duration of maternity leave.
