The Government is consulting on whether to extend the current legal protection from redundancy for women on maternity leave to include women who have told their employer that they are pregnant, women who have returned to work after maternity leave (for up to six months) and new parents on other types of parental leave. The consultation closes on 5 April 2019.
The consultation stems from a commitment in the Government’s response to the Taylor Review of Modern Working Practices to review the legislation relating to protection against redundancy (see our report here). Previously, a report by the Women and Equalities Select Committee on pregnancy and maternity discrimination in 2016 (WEC Report) had shown that the number of expectant and new mothers forced to leave their jobs had almost doubled since 2005 and suggested that "…with record numbers of women in work in 2016, the situation is likely to decline further unless it is tackled effectively now".
In their response to the WEC Report in 2017 (which we reported on here), the Government committed to "consider further and bring forward proposals to ensure that the protections in place for those who are pregnant or returning from maternity leave are sufficient". To further that commitment, the consultation now seeks views on extending redundancy protection for pregnant women and new parents. It also sets out more widely what the department is doing to tackle pregnancy and maternity discrimination, and explains the current law on redundancy protection.
The consultation recommends that the UK extends the current protection afforded under the Maternity and Paternity Leave etc Regulations 1999 (which apply to the period of maternity leave) to cover the period of pregnancy and a period afterwards, for up to 6 months. It asks how best to achieve that and who else should be covered, for example, those taking Shared Parental Leave or Adoption Leave. In particular, the consultation:
1. Seeks views on how to define when in a pregnancy additional protection against redundancy should begin, suggesting that, for clarity and transparency, this seems to be best defined as the point a woman informs her employer that she is pregnant in writing, but asks whether a different reference point should be used;
2. Notes that the WEC Report suggests that the period of additional protection after returning to work should be 6 months, which, in the Government's provisional view, appears to be an appropriate length of time (on the basis that it is a long enough period to allow a new mother to re-establish herself in the workplace) but seeks views on this, and whether a different period of “return to work” would work better;
3. Asks whether additional protection should be extended to other groups (such as those taking adoption leave, shared parental leave, longer periods of parental leave) who may experience unfair treatment in the return to work period in the same way that some new mothers do;
4. Asks when the period of additional protection after returning to work should start where a period of maternity leave is followed immediately by a period of annual leave, special leave or a career break and notes that there is also the question of how any extended redundancy protection would work with shared parental leave, where parents chose to take that in multiple blocks (i.e. a period of shared parental leave, followed by a period at work, followed by a further period of shared parental leave). The Government also confirms their intention to form a technical task group to work through these more challenging issues;
5. Sets out the steps that the Government is taking to increase business and employer awareness of their rights and obligations, such as updating the MAT B1 form and NHS Start4life campaign to include a link to advice and guidance on employment rights for expectant and new parents, releasing new ACAS guidance in November 2017, updating the pregnancy and maternity pages on GOV.UK and working with the EHRC on the 'Working Forward Campaign'. However, the consultation invites comments on how these steps might be improved, to tackle pregnancy discrimination more effectively in general;
6. Considers the existing approach to the enforcement of employment and equalities legislation in the context of recommendations from the WEC Report and the Taylor Review; and
7. Discusses the current employment tribunal time limit, noting that employment tribunals can already allow the time limit to be extended in discrimination cases if it is considered 'just and equitable' given all the circumstances of the individual case (also noting that, in the period from January to June 2018, 25 cases were accepted for late submission, and none were rejected). However, the Government will consider whether further guidance might be helpful and has committed to consult to explore the evidence for changing Employment Tribunal time limits for claims relating to discrimination, harassment and victimisation, including on grounds of pregnancy and maternity. This will build on the explorative work already undertaken to gather data on the success rate of ‘out of time’ tribunal claims for pregnancy and maternity discrimination cases.
The consultation can be found here and closes at 11.45pm on 5 April 2019.
If the proposals go ahead, the main issue for employers will be the length of time for which women would have enhanced rights during any redundancy process, which would be doubled and could last for up to two years. This could have a particular impact on redundancy processes, particularly in female-dominated workforces, where many more employees might be entitled to priority for suitable alternative vacancies. Also, it will be interesting to see how the Government's technical committee approaches applying the additional protection to other types of family-related leave where leave can be take in non-consecutive blocks or booked on fairly short notice, as these areas would be likely to require extra measures to be put in place. However, with a consultation closing date of 5 April 2019 coming shortly after Britain's forthcoming exit from the European Union, it could be some time before we receive the Government's response.