Before an employee on maternity leave is made redundant, her employer must offer suitable alternative employment if available, either with the employer or an associated employer. Employees taking adoption and shared parental leave are protected in a similar way. The government has been consulting on whether what is being done to tackle pregnancy and maternity discrimination is adequate and whether to expand protection for pregnant women and new parents.
Existing redundancy protection
Under the Maternity and Parental Leave etc. Regulations 1999 (MAPLE), before making an employee on maternity leave redundant, employers have an obligation to offer them (not just invite them to apply for) a suitable alternative vacancy, where one is available with the employer (or an associated employer). This gives the woman priority over other employees who are also at risk of redundancy thereby challenging the “default setting” of offering redundancy to the women on maternity leave first.
An 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 her previous role.
The Equality Act sets out a ‘protected period’ during which women who are pregnant or have recently given birth are explicitly protected from discrimination. The ‘protected period’ runs from the start of a person’s pregnancy until:
- she returns to work from ordinary or additional maternity leave (if she is entitled to either form of leave); or
- two weeks after the end of her pregnancy, if she is not entitled to maternity leave.
During the ‘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.
Once the protected period ends, it is still unlawful to treat a woman less favourably because of her pregnancy, maternity or breastfeeding. This might be because the less favourable treatment stems from a decision taken during the protected period, or because it may amount to sex discrimination.
A key purpose of the existing enhanced protection against redundancy for women on maternity leave is to help tackle discrimination and to change the culture which can exist around mothers and the workplace. The consultation is the government’s response to the Taylor Review, and had previously been raised by the Women and Equalities Select Committee. It recommends the current redundancy protection afforded to cover the period of pregnancy and a period of maternity leave, is extended to 6 months after the return to work.
The impact of extending the redundancy protection afforded under MAPLE into the “return to work” period for mothers is also being considered for other groups who are taking extended periods of leave for similar purposes – i.e. that are akin to maternity leave. It asks how best to achieve that and who would be covered, for example, those taking Shared Parental Leave or Adoption Leave. These groups may experience unfair treatment in the return to work period in the same way that some new mothers do. It is likewise important that they are not-disadvantaged.
Extended redundancy protection
The government has now said that it will change the law so that redundancy protection applies from the point when a woman notifies her employer of her pregnancy, whether verbally or in writing, to six months after the end of the maternity leave (notwithstanding any additional leave she may add on to the end of the maternity leave). For those on adoption leave, the period will be extended to six months after the end of adoption leave.
The government will consult further over the coming months on how to provide a period of extended redundancy protection for those returning from shared parental leave (SPL). Given that some people may take SPL for only a few weeks, the government considers that it would be disproportionate for people in those circumstances to benefit from redundancy protection for six months after returning to work.
Extending MAPLE into a “return to work” period can create challenges in terms of the interactions of different forms of leave. For instance, when would the “return to work” period start (i.e. when would the 6-month period of additional redundancy protection begin) where a period of maternity leave is followed immediately by a period of annual leave, special leave or a career break? There is also the question of how any extended redundancy protection would work with shared parental leave, where parents chose to take that in multiple blocks (i.e. a period of shared parental leave, followed by a period at work, followed by a further period of shared parental leave). These are challenging questions and the Government intends to form a technical task group to work them through.
In the meantime, employers should follow the government consultation and look out for new legislation in this area. Policies should be reviewed as they may require updating to comply with existing and any new law.