26 May 2023
The government has announced it will introduce new legislation to protect pregnant employees and those returning from family leave in the event of redundancy.
Currently, employees on maternity, adoption or shared parental leave have the right to be prioritised for any suitable alternative vacancies. However, this right does not extend to the period during which an employee is pregnant or when they return to work following family leave.
The proposed measures are designed to tackle pregnancy discrimination and the disadvantages expectant mothers, and those returning from family leave are reported to have experienced in the workplace.
However, the burden of enforcement will remain on the individual experiencing discrimination. Currently, the number of women taking enforcement action is low. There is also only a three-month time limit in which an employee can bring a tribunal claim - a short timeframe for new parents.
A report by the Equality and Human Rights Commission (EHRC) found that:
- one in nine mothers were either dismissed, made compulsorily redundant, or treated so poorly they felt they had to leave their job; and
- one in five mothers said they had experienced harassment or negative comments related to pregnancy or flexible working from their employer and colleagues.
While the EHRC welcomed the new government measures to better protect expectant mothers and parents, they commented that it may need to return with stronger protective measures if evidence of discrimination persists. They also argue that the government should review the three-month time limit for bringing tribunal claims in maternity and pregnancy discrimination cases.
What does this mean for employers?
The Protection from Redundancy (Pregnancy and Family) Bill will amend the Employment Rights Act 1996 and create new regulations providing protection against redundancy during pregnancy and during or after maternity, adoption or shared parental leave. It’s expected that the redundancy protection will apply from the date the employee notifies their employer of their pregnancy until six months after the end of maternity, adoption or shared parental leave.
Employees that qualify will have the right to be offered any suitable alternative employment in a redundancy exercise ahead of their colleagues. Failure to do this could result in the redundancy dismissal being automatically unfair and lead to discrimination claims, the compensation for which is uncapped.
While this proposed change of law could present financial risks for employers, there could be practical challenges, too. Employers undertaking a redundancy exercise will need to keep track of those employees who are on or have recently returned from family leave. Once the new law is introduced, these employees will be entitled to additional redundancy protection.
It’s currently unclear whether employees will need to have taken a minimum period of family leave to qualify for enhanced protection or if it will apply even when they have taken a short period of shared parental leave, for example.
Employers should also be mindful that employees who have been recently pregnant and suffered a miscarriage or stillbirth could be protected under this new legislation.
On 19 May 2023, the bill passed its third reading in the House of Lords without amendment. While there is still no timeframe for when draft regulations will be published, we expect this to happen within the next 12 months.
How can employers prepare?
Given the current economic climate, many employers may consider workforce restructuring and redundancies this year. Employers should keep an eye on developments in this area, which could mean additional considerations are necessary.
Once the new law is implemented, employers may need to review and update their policies and procedures. They may also need to consider training for HR and managers responsible for redundancy processes. It’s a necessity for the changes to be properly built into redundancy processes and for managers to be aware of the consequences if they fail to comply.
Finally, employers should bear in mind that pregnant employees are also protected from pregnancy and maternity discrimination under the Equality Act. This means that where an employer treats a pregnant employee unfavourably because of a reason related to her pregnancy, she will have the right to pursue a discrimination claim.
Similarly, where a woman returning from maternity leave has her flexible working request rejected and feels her employer’s decision has put her at a disadvantage compared to a man, she could pursue an indirect sex discrimination claim. This is because women are still statistically more likely to be responsible for childcare. Please refer to our article on changes to flexible working requests for further details.
If you are an employer planning or preparing for a restructure or redundancy exercise and would like support with this or the issues raised in this article, please contact Jennifer Mansoor.