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Maternity Action, a charity working to end inequality and improving the health and well-being of pregnant women, has recently produced a report on the increased risk of redundancy during pregnancy, maternity leave and returning to work. Maternity Action highlights statistics from a report by the Equality and Human Rights Commission (EHRC) which Eric Gilligan discussed in his article back in May 2016.

In summary, the EHRC report from 2016 found that 77% of women and new mothers had experienced “negative or possibly discriminatory” experiences during pregnancy, maternity or on their return from maternity leave amounting to 390,000 women each year. The report states research undertaken back in 2005 found that 45% of women had experienced discrimination, showing a significant increase in discrimination over the last 11 years.

The Maternity Action report goes on to suggest that women often do not take action if they encounter discrimination, even if they have the right to do so. This, as the report states, can be due to the stresses involved with labour and the increased physical and mental pressures women are under during this time.

Current Legal Framework

Pregnancy and maternity is identified as a protected characteristic in section 4 of the Equality Act 2010 (EA 2010), it is unlawful for an employer to:

• discriminate by treating a woman unfavourably during the protected period (from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy; or

• discriminate by treating a woman unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

Women who are on maternity leave also have additional protections under Regulation 10 of the Maternity and Parental Leave Regulations 1999. Regulation 10 provides that employers must put women on maternity leave first for any alternative roles if they are at risk of redundancy, ahead of their other colleagues. However, this only applies to women during maternity leave, those who are pregnant or who have recently returned from maternity leave are not entitled to benefit.

Proposals

Maternity Action has called on the Government to review the current redundancy protection and the charity wants them to replicate the German model of redundancy.  Under this approach, women must not be made redundant from the point they notify their employers of their pregnancy through to six months after returning to work following maternity leave, with only limited exceptions such as the closure of the business. The diluted version of this, and one which Maternity Action recommends as an interim step, is an extension of the Regulation 10 rights already in place in the UK to cover the period from pregnancy through to six months after returning to work. Furthermore, Maternity Action, to combat the lack of action taken by women experiencing discrimination, want time limits for women to pursue a claim to be increased from three months to six months

It will be interesting to see if the Government will adopt all, or any, of the recommendations that Maternity Action proposes. The extension of the Regulation 10 rights to include the period from pregnancy to six months after maternity would seem to be the next logical step for the Government to enact. However the likelihood of reform in this area looks extremely uncertain. Indeed the Government appears to have backtracked on its previous commitments in this respect. In response to a report by the House of Commons Women and Equalities Select Committee prepared in response  to the EHRC research referred to above, the Government made a commitment  “to review the position in relation to redundancy”. Maternity Action points out however that since this announcement in January 2017 the Government has neither consulted on the issue nor provided any time frame for doing so. It goes on to reveal that at a meeting convened by Maternity Action in October 2017, Officials indicated that the Government was not now planning any legislative changes and asked for “other ideas” to address the problem. While some employers may welcome the abandonment of plans to restrict their discretion to implement redundancies, Theresa May’s beleaguered Government will inevitably face further criticism for apparently reneging on a clear commitment particularly in light of the inadequacy of the indications as to future plans.

If you have any queries about any of the issues raised above, please do not hesitate to contact a member of the Stronachs Employment team.

Eric Gilligan, Partner and Ross Michie, Trainee Solicitor

Chambers UK 2018

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