The Government has confirmed that it will extend protection from redundancy to apply from the point a women tells her employer that she is pregnant until six months after she has returned to work.


The same protection will apply to parents who have returned to work after adoption leave (for up to six months) and to parents who have returned to work after shared parental leave (for a period proportionate to the amount of leave taken and the threat of discrimination). The Government also intends to consult on extending the three month time limit for claims relating to discrimination, harassment and victimisation, including on grounds of pregnancy and maternity. Good Work Plan: Pregnancy and Maternity Discrimination Consultation Response (July 2019)

Background

In January 2019, the Government consulted on extending redundancy protection for pregnant women and new parents (Consultation). This was in response to research from the Department for Business, Energy and Industrial Strategy and the Equality and Human Rights Commission which demonstrated that 77% of mothers had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave, as well as evidence from the Women and Equalities Select Committee which found that some new mothers who returned from maternity leave were being forced out of work. The Consultation sought views on whether: 

1. Redundancy protection currently available for maternity leave should be extended into a period of “return to work”; 

2. Similar protections should be afforded to other groups who take extended periods of leave for similar purposes, such as adoption or shared parental leave; and 

3. The steps that the Government is taking to increase business and employer awareness of their rights and obligations might be improved to tackle pregnancy discrimination more effectively. 

It also set out the Government’s position on enforcement and tribunal time limits. The Consultation closed on 5 April 2019. For more detail, you can read our previous article here.

Response 

On 22 July 2019, the Government published its Response to the Consultation (Response). There were 643 responses to the Consultation, of which 538 were specifically on seeking an extension to the time limits to tribunal claims. The Response focuses on the 105 responses which were directly concerned with the substantive content of the Consultation. 

1.  Should the redundancy protection currently available for maternity leave be extended into a period of “return to work”?

The Government will:

  • Ensure the redundancy protection period applies from the point the employee informs the employer that she is pregnant, whether orally or in writing; and
  • Extend the redundancy protection period for six months once a new mother has returned to work.
2.  Should similar protections be afforded to other groups who take extended periods of leave for similar purposes?

The Government will:

  • Extend redundancy protection into a period of return to work for those taking adoption leave by following the same approach as the extended protection provided for those returning from maternity leave (i.e. for six months); and
  • Extend redundancy protection into a period of return to work for those taking shared parental leave. However, the Government will develop the design of this new protection, taking account of: 
    • the key objective being to help protect pregnant women and new mothers from discrimination;
    • the practical and legal differences between shared parental leave and maternity leave, which mean that it will require a different approach;
    • the period of extended protection being proportionate to the amount of leave and the threat of discrimination; 
    • that a mother should be no worse off if she curtails her maternity leave and then takes a period of Shared Parental Leave; 
    • the solution should not create any disincentives to take Shared Parental Leave.
3.  Can the steps that the Government is taking to increase business and employer awareness of their rights and obligations be improved to tackle pregnancy discrimination more effectively?

The Government will:

  • Establish a taskforce of employer and family representative groups, to: 
    • make recommendations on what improvements can be made to the information available to employers and families on pregnancy and maternity discrimination; and  
    • develop an action plan on what steps Government and other organisations can take to make it easier for pregnant women and new mothers to stay in work.
4.  Tribunal time limits

The Consultation discussed the suggestion that the three month time limit for bringing a claim in pregnancy and maternity discrimination cases should be extended to six months. Over 500 responses were received specifically on this issue.  

The Government will:

  • Consult to explore the evidence for changing Employment Tribunal time limits for claims relating to discrimination, harassment and victimisation, including on the ground of pregnancy and maternity.

Comment

For employers, the main impact of these commitments when they take effect will be the dramatically increased length of time for which women would have enhanced rights during any redundancy process, which will 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.  

It is unsurprising that the Government needs more time to consider how to introducing protection from a return from shared parental leave might work. In their Response, the Government agrees that parents returning from shared parental leave should receive some protection from redundancy, but that a father returning from one week's shared parental leave should not be in exactly the same position as a mother returning from 12 months' maternity leave, as this would not be proportionate. In any event, given that the Government has just launched a separate consultation calling for views on changes to parental leave entitlements (including whether statutory paternity leave and shared parental leave should be changed and/or improved) (Chapter 1 of the Proposals to Support Families consultation), it seems likely that the Government may wait to confirm any potential changes to the operation of parental leave more generally before establishing exactly how protection from redundancy will operate for this type of leave. Chapter 1 of the Proposals to Support Families consultation closes on 29 November 2019.

Government Response:  Extending redundancy protection for women and new parents

Key contact

Helen Almond

Helen Almond

Senior Knowledge Lawyer, Employment & Incentives
Manchester

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