Proposals for better protection during pregnancy, maternity, and family leave

We look at the Government’s latest consultation on increased protection for parents, especially new and expectant mothers.

UPDATE: Since this article was written, a Private Members’ Bill, the Protection from Redundancy (Pregnancy and Family Leave) Bill was published on 15 June 2022. The Bill has Government support which makes it more likely that it will become law. The Bill is currently making its way through the Parliamentary process. The Bill extends redundancy protection so that it applies to pregnant women as well as new parents returning to work from a relevant form of leave. The protections will apply for an extended period from when a woman tells her employer she is pregnant until 18 months after the birth. The 18-month window will ensure that a mother returning from a year of maternity leave can receive 6 months additional redundancy protection. This protection will also apply to parents who have taken adoption or shared parental leave up to 18 months after the child’s adoption or birth.

It was back in 2016 that the Women and Equalities Committee called for greater rights and protection for those who are pregnant or on maternity leave at work. It highlighted that the number of expectant and new mothers forced to leave their jobs had doubled since 2005. It made a number of recommendations for the Government to improve pregnancy and maternity protection and called for it to take action. It was following research carried out by the Equalities and Human Rights Commission and previous recommendations made to the Government, largely encompassing awareness but including a review of ET fees (as they were still in force) and time limits to bring a pregnancy/maternity related discrimination claim. The Women and Equalities Committee repeated these particular recommendations and went further, calling, amongst other matters, for greater protection from redundancy.

Whilst the Government rejected or did not adopt almost all of these recommendations, it did pledge to look at the situation regarding redundancy. It also referred to this in its response to the Matthew Taylor Review on Modern Working Practices. The EHRC had found that 6% of women were made redundant and 11% felt forced to leave their jobs on return from maternity leave. On 25 January 2019 the Government launched a consultation on extending the protection for new and expectant mothers, and potentially parents taking other types of family friendly leave.

What are the main recommendations?

The consultation seeks views on the following proposals which the Government is looking at taking forward:

• Consolidating the current redundancy protection afforded to those on maternity leave (whereby they have the right to be offered a suitable alternative vacancy, where one exists, above other types of employees) to cover those who are pregnant or who are in a protected period of 6 months after returning from maternity leave.
• Whether 6 months after a return to work is the right length of time. It will also be looking at whether this should begin only at the end of maternity leave, or at the end of any return to work where, for example, the mother has added holiday, special leave or a career break onto the end of maternity leave.
• From what point pregnant women should be protected. The Government suggests it should be from when they inform their employers in writing that they are pregnant.
• Whether the same extended protection should be introduced for those who are on adoption leave, shared parental leave, and longer periods of parental leave. It asks whether these are the main types of comparable leave which could benefit from the same protection after a return to work, or whether other types of leave should be included. It then goes on to ask “to what extent do you agree that the same protection should be afforded to these groups?” Is this referring to whether there should be any particular minimum length of adoption leave, shared parental leave or parental leave to benefit from these protections? It refers to “longer periods of parental leave” but gives no suggestion as to what that might mean. Bearing in mind shared parental leave could only last 1 week (i.e. even less than paternity leave), these types of detail will need to be fleshed out in due course.

Regarding enforcement, the Government is minded to keep to the current UK position where a failure to abide by the preferential treatment rules could lead to an automatically unfair dismissal, rather than introducing an outright ban on dismissal such as exists in countries like Germany.

With Employment Tribunal fees no longer an issue, the Government turns to the question of time limits for maternity and pregnancy discrimination. It states that while it will continue to monitor the case for extending the time limit from 3 months to, perhaps, 6 months, Employment Tribunals already have the discretion to extend the time limit in cases where it is just and equitable. It states that in January to June 2018 no applications for this were refused, and 25 were accepted. However, this would obviously not take into account the number of women put off from bringing a claim because they believed (rightly) that they were out of time for doing so. The Government will also look at time limits from the point of view of harassment and victimisation.

The proposals have received mixed reactions, with one campaign group pointing out that more women were made redundant during maternity leave (when they are currently supposed to be protected by law) than before or afterwards, and questioning whether the proposals would make much difference if this is already the case.

The consultation closed on 5 April 2019.

Read more on redundancy protection for maternity leavers here.

This article was originally posted on 7 Feb 2019 with an update on 11 Jan 2023.