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Education briefing – Government announces plans to extend redundancy protection for women and new parents

  • United Kingdom
  • Education - Briefings

16-08-2019

On 25 January 2019 the Government published a consultation under the Good Work plan on proposals to extend redundancy protection for women and new parents. The consultation, which ran until 5 April 2019, sought views on the following:

• whether the redundancy protection currently available for maternity leave should be extended into a period of return to work

• whether similar protections should be afforded to other groups who take extended periods of leave for similar purposes, such as adoption or shared parental leave

• whether 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

The Government has now published its response to the consultation exercise setting out the legislative and other steps it now intends to take. These include the extension of the redundancy protection period during which an employee on maternity or adoption leave must be offered suitable alternative employment (if it exists) to six months after return to work. The Government will consider further how this extension will apply in the case of shared parental leave.

Should the redundancy protection provisions be extended into a period of return to work?

Under the Equality Act 2010, women who are pregnant or have recently given birth are protected from discrimination during the course of the ‘protected period’. This runs from the start of a person’s pregnancy until either she returns to work from ordinary or additional maternity leave (if she is entitled to either form of leave) or until two weeks after the end of her pregnancy (if she is not entitled to maternity leave).

During this ‘protected period’ a woman is protected against discrimination that arises as a result of her pregnancy; any illness related to her pregnancy, or absence because of that illness; being on compulsory maternity leave; or seeking to take, taking or having taken ordinary or additional maternity leave.

Furthermore, under the Maternity and Parental Leave etc. Regulations 1999 (MAPLE), where a woman on ordinary or additional maternity leave is at risk of being dismissed for redundancy, the employer is obliged to offer her a suitable alternative vacancy, where one exists, prior to dismissal. This in effect gives her priority over other employees who are also at risk of redundancy. Similar provisions exist in relation to adoption leave, under the Paternity and Adoption Leave Regulations 2002.

In the consultation the Government proposed that this period of protection against redundancy should commence before the maternity leave period and be extended after the maternity leave (for example for six months) so that it continues following the return to work. Respondents to the exercise were asked if they agreed with the extension, whether six months after return to work would be an adequate period and, if not, what the period should be.

Over three-quarters of the respondents to the consultation agreed that the redundancy protection currently provided when someone is on maternity leave should be extended so that it continued into a period of return to work. The vast majority of these agreed that six months was an adequate period – other suggestions were for three, twelve and eighteen months.

The Government, therefore, has announced that it will extend the redundancy protection period for six months once a new mother has returned to work, with the expectation that this period will start immediately once maternity leave is finished, notwithstanding any additional leave which may immediately follow.

The consultation also asked how best to define when this additional protection commenced – suggesting that this could be the point at which the employee informs her employer in writing that she is pregnant. Around two-thirds of those answering the question agreed with this. Other suggestions were that the protected period should begin at the start of pregnancy or when the employee had orally notified the employer.

The Government’s response to this is that it has changed its mind and decided that the extended protected period will apply from the date on which the employee informs the employer that she is pregnant, whether that is done orally or in writing.

Should similar protection apply to other groups who take extended periods of leave for similar purposes?

The next, arguably more difficult question, concerns the degree to which any extended protection should also apply to those taking other forms of family leave.

In the consultation exercise the Government asked whether any extended protection should also apply to any of the following:

• adoption leave

• shared parental leave

• longer periods of parental leave

• other

In relation to adoption leave, 92% of respondents thought such leave was a direct equivalent to maternity leave and, perhaps not surprisingly, the Government has said that it will extend redundancy protection for six months following return to work from adoption leave.

The position in respect of shared parental leave is more difficult, despite 82% of respondents saying this leave was also directly equivalent to maternity leave, given the fact that it can be taken for short periods and on several occasions during the course of the year.

The Government has concluded that parents returning from shared parental leave should receive some extended protection from redundancy. However it believes that, for example, a father returning from one week’s shared parental leave should not be in the same position as a mother retuning from 12 month’s maternity leave, on the basis that providing six month’s redundancy protection following one week of shared parental leave is not proportionate to the threat of discrimination.

Therefore, the Government proposes to work with stakeholders to develop a solution that works in relation to the different possibilities for leave which exist under shared parental leave. It says this will take into account the following key principles and issues:

• the key objective is to help protect pregnant women and new mothers from discrimination

• the practical and legal differences between shared parental leave and maternity leave mean that it will require a different approach

• the period of extended protection should be proportionate to the amount of leave and the threat of discrimination

• a mother should be no worse off if she curtails her maternity leave and then takes a period of shared parental leave

• the outcome should not create any disincentives to take shared parental leave

It seems there is no intention to extend MAPLE to any other form of leave other than adoption and shared parental leave.

Improving awareness of rights and obligations to tackle pregnancy discrimination more effectively

The consultation asked how effective the Government had been in, firstly, informing pregnant women and new mothers of their employment rights and, secondly, in informing employers in relations to pregnant women and new mothers.

On the former, 41% felt the steps were very or fairly effective with 26% saying they were not very or not at all effective. On the latter the responses were 42% and 26% respectively.

In its response, the Government has said that it 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. It will also develop an action plan on what steps it and other organisations can take to make it easier for pregnant women and new mothers to stay in work.

Comment

Whilst the Government has committed to extending the protection in respect of redundancy to cover the period of six months from return to work in the cases of maternity and adoption, no time frame has been given for introducing this change. Indeed, in relation to the extension to shared parental leave the response says it will bring forward legislation “when Parliamentary time allows”. Given that the Government has, however, said that it will first work with stakeholders to develop a format that works for the variables within shared parental leave, it may be some time yet before legislation comes into force.

Assuming these changes are brought in as envisaged two immediate issues spring to mind. The first of these is how the Government will deal with the application of the extended protection to shared parental leave and how many different categories of entitlement that will create. Secondly, institutions may struggle with how to resolve competing claims to priority in a redundancy scenario if there is, for example, a single vacancy which is suitable and there are a number of at risk staff on (or who have, in the last six months, returned from) maternity, adoption and shared parental leave. That issue may mitigated in relation to shared parental leave, depending on what approach the Government eventually takes.

Another interesting point is that the protection will run from notification from the employee that she is pregnant, even if this is done orally (as mentioned, the original proposal was that this would have to be done in writing). Although in many cases the employee may of course notify in writing, there may be an evidential issue if it is only done orally, so institutions would be advised to make a note of any oral communication.

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