Redundancy when pregnant: fair dismissal?

According to studies conducted by the Equality and Human Rights Commission, and the Department for Business, Energy and Industrial Strategy, it is estimated that over 50,000 women could be losing their jobs each year because of pregnancy or maternity – and this was prior to the pandemic.

With reports that the number of women seeking legal advice regarding discrimination at work has increased fivefold since the lockdown, there are concerns that the coronavirus crisis has had a disproportionate impact on women in the workplace.

To provide new and expectant mothers with enhanced legal protections against redundancy, the Pregnancy & Maternity Bill 2020 has been put before Parliament.

Below we look at what the proposed new law could mean for women, including the extent to which this could help to prevent pregnant workers or new mums on maternity leave from being discriminated against in the workplace, and what steps should be taken by employers in mitigating the problem of unfair dismissals in the current COVID-19 climate.

What is the Pregnancy & Maternity Bill 2020?

In looking to address the issues raised by recent studies, and following a period of consultation, in July 2019 the government announced that new mothers returning to work after maternity leave would benefit from enhanced redundancy protections in the same way as those on maternity leave.

It was said that the proposed changes would extend the redundancy protection offered to new mothers for six months from the date of her return to work, a period of time not covered under the existing law.

This would mean that the protection for those returning from maternity leave would be aligned with those already in place during this leave, where the mother must be given priority over other employees to be offered any suitable alternative vacancy, if one exists, where her role has been made redundant.

That said, following criticism of the government for dragging its’ feet over implementing the new legal protections, the Pregnancy & Maternity Bill 2020 – officially described as the Pregnancy and Maternity (Redundancy Protection) Bill 2019/21 – is a private members’ bill that was put before the House of Commons by former cabinet minister and former chair of the Women and Equalities Committee, Mrs Maria Miller, on 8 July 2020.

What are the proposed rules and protections under this Bill?

The Pregnancy & Maternity Bill 2020 is said: “to prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or leave, except in specified circumstances; and for connected purposes.”

As with the proposed measures made by the government back in 2019, the suggested reforms under the Bill would, for the first-time, extend redundancy protection for six months from the date of a mother’s return to work.

However, the Bill is not simply an extension of the existing protection available to women, where a woman must be offered any suitable alternative vacancy where her job is at risk of redundancy. Instead, from the time a women is pregnant to six months after she returns to work, the reforms would mean that she could not be made redundant at all, not unless the employer was closing down the business or ceasing work in that area.

Further, pregnant workers who experienced a stillbirth or miscarriage would similarly be protected for up to six months from the end of their pregnancy or any leave that they were legally entitled to.

The Bill is intended to significantly strengthen existing redundancy laws to help better protect pregnant workers and new working mothers by prohibiting employers from making them redundant from the point that a woman notifies them she is pregnant until six months after the end of her maternity leave, except in very limited circumstances.

This is in stark contrast to having to offer a new or expectant mother a suitable alternative role where their existing role has been made redundant, a rule that is often overlooked, ignored or in some way circumvented by many employers.

When will the Pregnancy & Maternity Bill 2020 be implemented?

In putting the Pregnancy & Maternity Bill 2020 before Parliament, it was said:

“Women will have a central role in this country’s recovery from Covid-19, but we have a clear opportunity for the Government to level up, because despite the real legal protections set in law by this place, designed to outlaw discrimination against pregnant women and new mums, the Government’s own data show that more than 50,000 women a year feel they have no choice but to leave their jobs when they are pregnant.”

Clearly, advocates of the new law are describing a sense of urgency in implementing protections that will help to safeguard women in the workplace, not least in the context of the role of women in the UK’s recovery from the current economic downturn. That said, even though the Bill is being prepared for publication, it is not scheduled to have its second reading until 16 October 2020.

There is also no guarantee that the Bill will be successful – where only a very small number of private members’ bills have recently been passed into law – nor any set timescale on when this may happen.

Even assuming the Bill does become law, the enhanced protection that it seeks to offer new and expectant mothers will clearly come too late in the day for those returning to work during and in the immediate aftermath of the pandemic. For these parents, reliance will instead need to be placed on the existing legal protections to prevent unlawful discrimination at work.

What is the current legal position for employees?

Under the law as it currently stands, there are two main pieces of legislation that offer protections for pregnant women and new mothers on maternity leave: the Equality Act 2010 and the Employment Rights Act 1996.

The Equality Act sets out a period during which women who are pregnant, or have recently given birth, are explicitly protected from discrimination. This covers any scenario where it could be judged that a new or expectant mother has been treated unfavourably as a result.

During this period a woman is protected against discrimination that arises as a result of her pregnancy or entitlement to maternity leave, including:

• Any illness related to her pregnancy, or absence because of that illness
• Being on maternity leave, or seeking to take, taking or having taken maternity leave to which she is entitled.

The protected period currently runs from the start of the woman’s pregnancy until she returns to work from maternity leave, or two weeks after the end of her pregnancy if she is not entitled to maternity leave, for example, because she is not an employee. However, if the woman is treated unfavourably after this period of time, this could still constitute discrimination on the grounds of sex.

Both pregnancy and maternity discrimination is illegal, where new and expectant mothers also have special protection from unfair dismissal in a redundancy situation. This means that an employer cannot select for redundancy a pregnant worker or woman on maternity leave by reason of her being pregnant or on leave. To do so would amount to automatically unfair dismissal.

Further, under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 – made under the 1996 Act – if a redundancy situation arises during an employee’s maternity leave and it is not practicable by reason of redundancy for the employer to continue to employ her in her existing role, the employee must be offered any suitable alternative vacancy, where one exists.

In theory, this gives women on maternity leave priority over other employees who are also at risk of redundancy.

Can a new or expectant mother ever be made redundant?

As the law currently stands, a new or expectant mother can still be made redundant, as long as a fair redundancy procedure is used, and the reason for redundancy is not related to her being pregnant or on maternity leave.

By selecting an employee for redundancy on the basis of pregnancy and maternity, this would be classed as an automatically unfair reason. To avoid any potential discriminatory effects, it is often a good idea to use criteria that are largely objective and measurable and do not in themselves discriminate against certain individuals or groups, including new and expectant mothers.

However, as an employer, you have a fair amount of flexibility in determining which redundancy selection criteria to use. This could include, for example:

• An employee’s standard of work and/or performance
• An employee’s skills, qualifications and/or experience
• An employee’s attendance record and/or disciplinary record.

That said, even with some objective redundancy criteria, caution must still be exercised, for example, when using an employee’s attendance record this must not include absences relating to pregnancy and maternity.

You could also use the last-in-first out method, although this has been largely discredited as a sole means of selection for redundancy because of its potential to indirectly discriminate against younger people or women who tend to have shorter periods of employment.

It is also absolutely essential to remember that you must still consider if there are any suitable alternative vacancies available, giving the mother priority over other individuals before making them redundant.

What are the risks of making a new or expectant mother redundant?

As long as you adopt a fair selection process, the risk of being exposed to a tribunal claim for discrimination or unfair dismissal when making a new or expectant mother redundant is relatively minimal. However, you should always retain a clear paper trail, explaining your decision-making process from start to finish, including what consideration has been given to suitable alternative work.

That said, there have been various recent reports that pregnant workers and new mothers on maternity leave are bearing the brunt of the economic downturn by way of unfair selection for redundancy. This is because the cost of paying someone who is at home on maternity leave, or due to take maternity leave, can weigh heavily in the balance when trying to save a business.

As a reputable employer, however, regardless of any financial difficulties that you may be facing, it remains important to both your brand and the future of your business that you make any selection for redundancy on a fair and lawful basis, and not because a female worker is pregnant or on maternity leave.

Even though current statistics show that less than 1% of women who experience pregnancy or maternity discrimination even raise a tribunal claim – typically because of the strict time limits and pressures of being a new mum – it is still illegal to discriminate against a new or expectant mother, for which you could potentially face paying that individual an unlimited award of damages.

You could even be ordered to reinstate a pregnant worker or mother on maternity leave that you have unfairly dismissed by reason of redundancy. It is also worth noting that even where the strict 3-month time limit to submit a tribunal claim has been missed, a new or expectant mother who has experienced discrimination may still be able to take action in the civil courts.

What difference is the Pregnancy & Maternity Bill 2020 likely to make?

The Pregnancy & Maternity Bill 2020, even if this does become law at some point, will not be enacted in time to protect those parents who have suffered discrimination at work in the context of the coronavirus pandemic.

Further, even with additional legal protections in place, the low uptake of new and expectant mothers currently bringing a tribunal claim poses the important practical question of whether there is any point in enhancing these protections.

However, employers should never become complacent, or deliberately discriminatory, no matter how much your business may be struggling. The cost of a claim against you under the existing law, however minimal the risk of this materialising, could be the final straw for your business, financially speaking.

If you are considering making a new or expectant mother redundant, you should always seek expert legal advice from an employment law specialist.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.