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What changes could be introduced under the new Pregnancy and Maternity (Redundancy Protection) Bill?

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With more people unfortunately facing redundancies this year, there is a concern from certain groups that pregnant women and mothers on maternity leave could face discrimination when it comes to the redundancy process.  In light of this, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced in the House of Commons by MP Maria Miller on 8 July 2020. The Bill proposes measures that would give stronger protection against discrimination to pregnant women and new mothers.  Our Employment Law team here review the current position with regards to redundancies, pregnancy and maternity, explaining the proposed changes and the steps employers should start to consider.

What is the current legislation regarding pregnancy and maternity?

Under the Equality Act 2010 pregnancy and maternity is a protected characteristic, meaning that a woman who is pregnant or on maternity leave must not be subject to unfavourable treatment or victimisation due to her pregnancy or maternity. This protection lasts from the beginning of the pregnancy to when the woman returns to work from maternity leave.  The Employment Rights Act 1996 also protects women from unfair dismissal due to pregnancy or maternity.

There are nine protected characteristics; in addition to pregnancy and maternity, with the others being:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • race
  • religion or belief
  • sex
  • sexual orientation

Why is the Pregnancy and Maternity (Redundancy Protection) Bill being proposed?

In her speech to the House of Commons, Mrs Miller argued that the current laws surrounding pregnancy and maternity discrimination have failed to provide adequate protection. The Equality and Human Rights Commission has found that one in five pregnant women experience harassment in the workplace related to their pregnancy or flexible working, and more than 50,000 women a year feel forced out of their jobs due to poor treatment when they were pregnant or returning from maternity leave.

Many women who experience pregnancy and maternity discrimination struggle to enforce their rights. The expense and time required to mount an Employment Tribunal claim is prohibitive for many new mothers, which may explain why less than 1% of women who experience maternity discrimination launch a claim with the Tribunal.

There is a fear that discrimination towards pregnant women and new mothers will worsen as a result of Covid-19. As the Coronavirus Job Retention Scheme winds down, groups such as Maternity Action warn that pregnant women and new mothers will be the first to be made redundant as employers are forced to make cuts to their workforce.

What will change under the Pregnancy and Maternity (Redundancy Protection) Bill?

Under the current law, if a pregnant woman’s job is at risk of redundancy, she should be offered any suitable alternative vacancy. She should not need to go through the usual selection process or compete with other candidates.

However, employers do not always understand or comply with their legal obligations. If the proposed Bill passes, the law would state that a woman cannot be made redundant from the time she is pregnant until six months after she returns to work, unless the employer is closing down the business or ceasing work in that area. Women who experience a miscarriage would be protected for six months after their pregnancy ends or six months after the end of any leave they were entitled to. It is hoped that this new law will clarify employer obligations, avoiding the need for women to go to the Employment Tribunal to enforce their rights.

What employers should do now

You may be wondering if there is anything you should do now to prepare for the possibility of the Bill becoming law and we would recommend you consider the following:

  1. You should ensure that all your managers and supervisors are aware of the current legal obligations owed to pregnant women such as adjustments in the workplace where appropriate and time off for antenatal appointments.
  2. You should also have an equal opportunities policy that protects female employees and potential employees from discrimination on the basis of pregnancy and maternity.

It is clear however, that the problem facing pregnant women in the workplace goes beyond ignorance or a misunderstanding of the law and can occasionally go deeper into the culture of a business, with common perceptions being that women who are pregnant or on maternity leave are often perceived as ‘expensive’ or not committed to their job; an unfair and often untrue perception. You should therefore be mindful of the culture at your business and whether there are things you can do to counter these biases. You may want to promote measures that help new mothers, such as flexible working, throughout your business so that everyone knows these employees are valued and supported. Negative comments regarding pregnancy or maternity should not be tolerated and any complaints by new and expecting mothers taken seriously.

The Pregnancy and Maternity (Redundancy Protection) Bill has had its first reading in the House of Commons and is scheduled for a second reading on 16 October.  It is entirely possible the Bill will receive some amendments as it is debated in Parliament, and we will keep you updated on any changes to the law as they occur.

If you have questions regarding making redundancies in your business and have concerns about the process, particularly if you have a pregnant woman or someone on maternity leave within your workforce, you can contact us to arrange an appointment to discuss your situation.  Call us today on 023 8071 7717 or email employment@warnergoodman.co.uk.  Alternatively, you may also find these articles of use:

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.