On 21 October 2022, the Department for Business, Energy & Industrial Strategy declared that the government would back the Protection from Redundancy (Pregnancy and Family Leave) Bill, a private member’s bill put by Dan Jarvis, Labour MP for Barnsley Central[1]. The bill has received an unopposed second reading and will now move to the Committee stage, where it will undergo line-by-line examination, on 2 November 2022.
The purpose of the bill is to extend Regulation 10 of the Maternity and Paternity Leave Regulations 1999 (“MAPL 1999”) to give employees who have just returned to work after parental leave 6 additional months of redundancy protection. The recommendation for the additional 6 months is a product of a government consultation in January 2019[2].
Regulation 10(2) MAPL 1999 states that in a genuine redundancy situation, where there is a suitable alternative vacancy available in the company, the employee on maternity leave is entitled to be offered the role ahead of other employees at risk of redundancy but not on maternity leave. A “suitable” role is one that is simultaneously appropriate for the employee in the circumstances, and does not contain terms which are substantially less favourable. Sefton BC v Wainwright [2015] IRLR 90 made clear that the role must be offered unequivocally, and not subject to any competitive process. Failure to do so could result in a successful claim for automatic unfair dismissal in the Employment Tribunal, and/or discrimination on the grounds of sex, pregnancy and maternity in contravention of the Equality Act 2010 (“EqA 2010”). However, it is important to note that the duty under Regulation 10 MAPL is to give more favourable treatment to pregnant employees, so equal treatment with other employees would not necessarily amount to discrimination under s.18 of the EqA 2010.
This bill has been in the works for a number of years. It is backed by UNISON, one of the UK’s largest trade unions[3]. It comes in response to soaring numbers of women made redundant during pregnancy and maternity leave, exacerbated by the effects of the pandemic, and research that indicates that only 1% of women in this position litigate the matter in the Employment Tribunal[4]. Pre-pandemic, nearly 3/4 of all mothers reported a potentially discriminatory experience connected to their pregnancy and 1/2 reported that pregnancy had a negative impact on opportunities, status or job security. Furthermore, 1/20 were made redundant during pregnancy or maternity leave, according to the Equality and Human Rights Commission[5].
However, critics of the bill, including the charity Maternity Action, point out that the current protections offered by Regulation 10 MAPL are inadequate to protect new mothers. Crucially, the onus upon women to bring a claim in the Employment Tribunal is financially prohibitive. Furthermore, Regulation 10 can be broadly interpreted, which provides several ways for an employer to show that they were not in breach of the statute by making a new mother redundant. Additionally, in the wake of new motherhood, interviews or selection processes can be very taxing especially after being away from work for a long period of time, and can place new mothers at a disadvantage. Therefore, extending the protections of this Regulation is unlikely to make any tangible difference to the rights of those affected. Maternity Action made a strong case[6] for a more radical solution in light of the gendered effects of Covid-19 in September 2020. The lack of preventative protection afforded to new mothers by the current statutory scheme is the fundamental issue, and why extending the protections of the current scheme is a weak solution.
The former chair of the Women and Equalities Committee, Maria Miller MP, proposed a more radical bill: the Pregnancy and Maternity Redundancy Protection Bill. Her bill would have prohibited employers from making employees who are pregnant or on maternity leave redundant during that time period, and for six months afterwards, except in specific circumstances (such as the closure of the business). The legal obligations of the employer are therefore crystal clear. This bill was supported by Maternity Action, Pregnant Then Screwed[7], the Fawcett Society[8], and the Royal College of Midwives[9] amongst others. Whilst it could be said that this proposal would have elevated the rights of those on maternity leave above the rights of others, it is arguably necessary to implement positive action in light of the shocking statistics of incidence of maternity discrimination which have only worsened in recent years.
Nevertheless, some action is clearly better than none. However, it remains to be seen whether the Protection from Redundancy (Pregnancy and Family Leave) Bill is given enough scope to offer additional protection to women at risk of discrimination. In the meantime, the rights of women in the workplace will continue to regress.
[1] Department for Business, Energy and Industrial Strategy, 2022 Press Release ‘Government backs new law to help pregnant women and new parents stay in work.’ [online] Available at: https://www.gov.uk/government/news/government-backs-new-law-to-help-pregnant-women-and-new-parents-stay-in-work [Accessed 1 November 2022]
[3] UNISON, 2022 ‘Help boost protection for pregnant women and new parents.’ [online] Available at: https://www.unison.org.uk/news/article/2022/09/help-boost-protection-for-pregnant-women-and-new-parents/ [Accessed 1 November 2022]
[4]Equality and Human Rights Commission, 2016 ‘Pregnancy and Maternity-Related Discrimination and Disadvantage: Summary of Key Findings.’ [online] Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/509500/BIS-16-145-pregnancy-and-maternity-related-discrimination-and-disadvantage-summary.pdf [Accessed 1 November 2022]
[6]Maternity Action, 2020 ‘New and expectant mothers in the frontline: Covid19, the economic downturn, and the case for Maria Miller’s Pregnancy & Maternity (Redundancy Protection) Bill.’ [online] Available at: https://maternityaction.org.uk/wp-content/uploads/Mothers-in-the-Frontline-Sept-2020.pdf [Accessed 1 November 2022]
[7]Pregnant Then Screwed, 2020 ‘Written evidence submitted by Pregnant Then Screwed (CVG0032).’ [online] Available at: https://committees.parliament.uk/writtenevidence/8772/pdf/ [Accessed 1 November 2022]
[8]The Fawcett Society, 2019 ‘New bill to ban employers from making pregnant women redundant.’ [online] Available at: https://www.fawcettsociety.org.uk/news/new-bill-to-ban-employers-from-making-pregnant-women-redundant [Accessed 1 November 2022]
[9]Royal College of Midwives, 2020 ‘Miller’s Bill: Gov must adopt the Pregnancy & Maternity Bill.’ [online] Available at: https://www.rcm.org.uk/news-views/news/2020/millers-bill-govt-must-adopt-the-pregnancy-maternity-bill/ [Accessed 1 November 2022]
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