Redundancy and pregnant employees

Sheila Fahy

This is the first in a series of blogs on redundancy, covering developments and issues that can be challenging for employers. It will culminate in a seminar in the autumn. The first blog looks at the protection available for pregnant employees and those returning from maternity leave. This will be followed by two blogs on the potential pension implications of redundancy: key costs (part 1) and practical points to help with planning (part 2). Thereafter, the blogs will cover recent case law developments and issues suggested by readers.

The numbers speak volumes

There is an abundance of research to show that pregnant women or those on maternity leave do not fare very well when it comes to redundancy. In 2016, Government-commissioned research found that, of the 500,000 pregnant women in the workplace each year, three in four women (77%) suffer some kind of discrimination, and 6% are made redundant. It’s statistics like these that compelled the Government to consult on the issue last year, and to come up with proposals for reform.

Current protection

As the law currently stands, a woman who is pregnant is protected from discrimination under the Equality Act. The protection is different from other protected characteristics. Essentially, the woman has a protected period from pregnancy through to the end of maternity leave. During this period, a woman cannot be treated unfavourably on the grounds of pregnancy and maternity. When it comes to redundancy, if a woman is put at risk while on maternity leave, she is entitled to be offered suitable alternative employment if a vacancy exists. She gets priority over other at risk employees and, as such, it is one of the few examples of lawful positive discrimination.

Redundancy and maternity developments

For the second time, a private member’s bill is going through Parliament to address some of these issues. Traditionally, private members’ bills are not given any Government time and therefore rarely become law. However, this time, following its consultation on the issues, the Government has committed to extend the protection available to these women. The Pregnancy and Maternity (Redundancy Protection) Bill is scheduled to get its second reading in the autumn. It will provide a period of protection from the point of telling the employer that the woman is pregnant all the way through to six months following the return to work after maternity leave. During this period it will automatically constitute unfair dismissal to dismiss a woman for redundancy. Similar protection exists in Germany.

During the consultation, it was discussed whether similar rights should be available for adoption and shared parental leave. Early indicators are that the Government is inclined to give some protection but not to the same level as pregnant women or those returning from maternity leave.

We will track this Bill as it passes through Parliament, and report back on progress.

For further insights on restructurings from our colleagues in A&O’s Pensions team, click here.