In January 2017, in response to a report from the Women and Equalities Committee, the government committed to “strengthen existing protections and… to review the position in relation to redundancy” for pregnant employees.
Faced with increasing requests for help to their advice line, the charity Maternity Action have produced a report which calls on the Government to urgently act on its commitment.
What are the implications of this report for employers?
Figures published by the Equalities and Human Rights Commission in 2016 show that one in twenty women are made redundant during their pregnancy and 77 percent of women who are pregnant or are new mothers have a negative experience or experience some form of discrimination.
According to Maternity Action, some of these redundancies are discriminatory, many are unfair.
There are several calls to action in Maternity Action’s report, entitled Unfair Redundancies During Pregnancy, Maternity Leave and Return to Work, which involve the law. These can be summarised as follows:
The law should be changed so that an employee who is pregnant can only be made redundant in certain circumstances, which include the closure of the business. This is the case in Germany.
In the alternative, if the “current protections” are to remain – the “protected period” in which a woman enjoys enhanced rights should be extended to six months from the date of her return to work.
The timeframe in which to bring a claim, from the act of discrimination and / or dismissal, should also be extended from three months to six months.
These rights should be extended to fathers and partners taking paternity leave, shared parental leave or parental leave.
The report is concerning, most notably the real life examples that show that pregnant women are still being treated so poorly, from communicating their good news to returning to work, to someone sat at their desk.
However, the suggestion of extending the time to bring a claim to tribunal or limiting the circumstances when an employer can make an employee redundant is controversial.
On the one hand, the figures show that a high proportion of women – and no doubt men when the figures filter through – are not bringing their claims to a tribunal due to the tight timeframes in which to issue proceedings, coupled with the fact that they have childcare needs and the associated stress. This needs to be addressed.
However in the current climate, whereby Acas conciliation can be used tactically to extend limitation, we could see a position whereby claims are issued after nearly eight months.
A lot of unreasonable pressure could be placed on an employer by claimants. In addition “certain circumstances” would need to be considered very carefully as any restrictions on businesses could provide a position whereby they cannot function effectively.
With the way in which we are doing business evolving, such as the gig economy, real care will be needed to ensure a balance is found.
Whilst the examples and figures are appalling, this does show just how much of a difference positive steps such as quality communication with the employee throughout their maternity leave (making sure that you agree and review the level of contact), ensuring that any redundancies are genuine and entering into meaningful consultation throughout can make.
Download the Unfair Redundancies During Pregnancy, Maternity Leave and Return to Work report at