Employment

In the UK, there is no blanket protection against the dismissal of pregnant employees or those on maternity leave.

However, if an employee on maternity leave has been selected for redundancy an employer has an obligation to offer her a suitable alternative vacancy (where one is available), seemingly in priority to other potentially redundant employees. The alternative vacancy must be both suitable and appropriate for the woman to do in the circumstances, and the terms and conditions must not be “substantially less favourable” than in her previous role. This “right of first refusal” ends immediately upon the new mother’s return to work. A failure to comply risks an automatic unfair dismissal claim.

The position can be contrasted with other EU countries, where blanket protections against dismissal do exist. In France, for example, new and expectant mothers are protected from dismissal (except where continuation of the employment contract is impossible, or there has been gross misconduct) from the point of pregnancy until 10 weeks from the date on which the employee returns from maternity leave. In Germany, a “dismissal ban” applies from pregnancy until four months after childbirth, during which time employers need government approval to dismiss.

How common is pregnancy and maternity discrimination in the UK?

Recent research (by the Department for Business Innovation and Skills and the Equality and Human Rights Commission) found that maternity discrimination has increased since similar research conducted in 2005, with more women now being made redundant or forced to leave their job than a decade ago. In addition, more than three quarters of mothers (77%) reported potentially discriminatory or negative experiences.

On 31 August 2016, the Women and Equalities Select Committee (WESC) published a report, calling for women to have similar protections to those in Germany. It recommended that a system should be implemented under which new and expectant mothers could only be made redundant in very limited circumstances throughout pregnancy and maternity leave, and for six months afterwards.

Consultation now open

BEIS does not suggest introducing a blanket ban on dismissal, and instead recommend extending the scope of the current protection so that pregnant women and new mothers who have recently returned to work will have the same protection as those on maternity leave. In other words, if they are in a redundancy situation they would also benefit from the “right of first refusal”.

In line with WESC’s recommendations, BEIS proposes that the protection is extended to cover the period from when the woman first notifies her employer in writing of her pregnancy until six months after she returns to work.

BEIS notes that those taking similar leave such as adoption leave, shared parental leave and longer periods of parental leave may also experience similar problems to women taking maternity leave. It therefore seeks views on whether the additional protection should be extended to some or all of those groups.

The consultation will remain open until 5 April 2019. You can provide your comments here.

Please get in touch should you wish to discuss anything raised in this blog. Workbox subscribers can access our explanatory sections and policies on pregnancy, maternity and discrimination.

Louise Usher

Louise Usher is a Solicitor within the Employment team at Brodies LLP, based in Glasgow.
Louise Usher