Increased redundancy protections for pregnant employees and those on maternity & paternity leave

In 2015, new research by the Equality and Human Rights Commission (“EHRC”) found that around 54,000 new mothers may be forced out of their jobs in Britain each year – many by reason of redundancy. This shocking statistic prompted a government review into the protections for employees on maternity, shared parental and adoption leave (“MSPA leave”) and a proposed extension to the current laws.

So, what is the current position, what are the proposed changes and are they enough?

Current position

Currently, under Regulation 10 of the Maternity and Paternity Leave Regulations 1999, if a redundancy situation arises during an employee’s maternity leave and it is not reasonably practicable to continue to employ her under her existing terms, the employee is entitled to be offered a suitable alternative role where one exists. To be considered a “suitable alternative role” it must be appropriate/not substantially worse than the previous role and the employer should carry out an adequate search. A suitable alternative role should be offered to employees on MSPA leave in advance of other employees. If an employer does not offer an alternative role and the employee is made redundant, they could potentially face a claim for unfair dismissal.

Despite these protections being in place, significant numbers of working mothers, in particular, were being made redundant whilst on maternity leave. Unfortunately, whilst on MSPA leave, it is difficult for an employee to know a) whether their employer has done a reasonable search for a suitable vacancy and b) whether any such vacancy is available.

Further, the protection currently only applies whilst the employee is on MSPA leave and is lost once they return to work. Yet redundancy may only become necessary or apparent after the employee has returned to work – for example, if their role has been subsumed into another, or the tasks they undertook are no longer required by the business.

What’s new?

In response to the EHRC report, the government has committed to increasing the scope of Regulation 10, to extend the protections to employees for six months after they return from MSPA leave. The intention is to offer greater job security upon the employee’s return.

Is it enough?

Although it is positive that the government has acknowledged that more needs to be done, critics are questioning whether it is enough to address the symptoms, as opposed to the root, of the problem. Although employers are required to offer the employee a suitable alternative role, the employee may still be required to go through a job selection process, which could potentially disadvantage those returning from leave. Employees returning from leave may find interviews difficult after a significant period of absence, or they may not fare well in comparison to other employees regarding current experience or technical knowledge.

What steps should employers consider?

It is vital employers follow a fair and reasonable redundancy process to avoid ending up in an Employment Tribunal. Our solicitors regularly advise employers who are considering making redundancies, and we have published a practical guide to redundancy for employers, which can be downloaded here.

It is clear that more can be done to protect working parents returning from leave, and it is important employers consider ways of making redundancy processes fairer for those returning. One example would be for employers to consider the employee’s performance prior to maternity leave, since it is difficult to demonstrate recent experience and performance whilst absent. Further, alongside their legal obligations, employers should ensure that they foster a good working environment for returning parents – for example introducing phased returns, flexible working, and other accommodations, such as a private place to express breastmilk.

By going beyond what is simply required of them by law, employers will likely find it is not only employees who reap the benefits – it will also go some way to fostering a culture of positivity, which in turn could lead to boosted productivity and retention.

For advice about this or any other workplace issue, contact Angie Crush on 020 7377 2829 or email [email protected].