Last week Maternity Action published a report on the impact of unfair redundancies on pregnant women and new mothers. Their research indicates that one in every twenty mothers are made redundant during pregnancy, maternity leave or on their return to work – and many of these redundancies are discriminatory and unfair.
Women are losing their jobs through redundancies which are not real and redundancies which are discriminatory
What is the current position?
An employee can be selected for redundancy if she is pregnant or on maternity leave, so long as:
- There is a genuine redundancy situation. A non-genuine redundancy situation might be where a pregnant employee is dismissed to avoid paying maternity pay or in order to retain the maternity cover employee.
- The employer follows a fair procedure and acts fairly and reasonably.
- The employer informs and consults with the employee. Pregnant employees and those on maternity leave should be given information and consulted with in the same way and at the same time as other employees, so far as practicable.
- Objective, non-discriminatory selection criteria are applied fairly. A dismissal will be automatically unfair if an employee is selected for a reason connected with her pregnancy or maternity leave. Criteria should not disadvantage employees because of pregnancy or maternity leave so, for example, if using absence as a factor, absences due to pregnancy or pregnancy-related sickness should be excluded.
- If on maternity leave, the employee is given priority over other employees for any suitable alternative vacancies. This means that she should not have to undergo an interview or assessment for the job; she should simply be offered it.
What are the recommendations?
The Maternity Action report states that the current legal framework is insufficient to protect women from unfair redundancies during pregnancy, maternity leave and return to work. It calls on the government to act on its commitment to review redundancy protection, which it made in January of this year. The recommendations include:
- Adopting the German model of redundancy protection. Under this approach, women would be protected from being made redundant from notification of pregnancy through to six months after returning from work, with some limited exceptions (e.g. closure of the business).
- Women should be given priority for suitable alternative vacancies for longer – from the start of their pregnancy until six months after the end of maternity leave. This is only recommended as an interim step until adequate legal protections are in place.
- The protections for pregnant women and new mothers should be extended to fathers and partners taking paternity, shared parental and parental leave during pregnancy and their child’s first year.
- The time limit for raising pregnancy related claims at the employment tribunal should be extended from three to six months.
- Employers should evaluate the retention rates of women one year after returning from maternity leave as part of their gender pay gap analysis.
- ACAS should update its guidance on redundancy during pregnancy and maternity.
If you need to discuss your approach to redundancy for new and expectant mothers or if you have a particular case you would like advice on, please speak to your usual Brodies contact.
On November 20, 2017