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There appears to be continuing momentum behind moves to extend legal protections for women against pregnancy and maternity discrimination. This has been fuelled by a number of recent reports providing a basis for arguments that such discrimination, although clearly unlawful, is still prevalent in UK work places. In March 2016 research carried out by the Department for Business, Energy and Industrial Strategy (BEIS) and the Equality and Human Rights Commission (EHRC) suggested that 77% of women responding to their survey reported negative experiences at work related to their pregnancy or maternity.

In August 2016 the Woman and Equality Select Committee (WESC), published a report into pregnancy and maternity discrimination showing that the number of expectant and new mothers who felt that they had been forced to leave their jobs had almost doubled since 2005.

The Government has responded by means of the publication on 25 January of a BEIS consultation document: https://www.gov.uk/government/consultations/pregnancy-and-maternity-discrimination-extending-redundancy-protection-for-women-and-new-parents

BEIS proposes that the simplest way of achieving additional protection for new and expectant mothers, is to extend the scope of the current protection against redundancy provided under the Maternity and Parental Leave Regulations 1999 (MPL Regulations), so that pregnant women and new mothers who have recently returned to work have the same protection as those actually on maternity leave.

Under Regulation 10 of the MPL Regulations, before making a women on maternity leave redundant, an employer must offer them a suitable alternative vacancy where one is available with the employer or an associated employer. This controversial measure gives women on maternity leave legal priority over other employees who may be at risk of redundancy. Failure to comply by the Employer will mean that the dismissal of the women for redundancy will be regarded as automatically unfair. In line with the WESC recommendations, BEIS proposes that the protection under Regulation 10 is extended by 6 months after the new mother returns to work.

The Consultation document goes on to seek views on when protection for pregnant women should begin. In particular, it seeks views on its proposal that this should be the date on which the employee notifies her employer in writing of her pregnancy. In addition, it is noted that those taking similar leave such as adoption leave, shared parental leave and longer periods of parental leave (which may, of course, include men), may also experience similar problems to women taking maternity leave. It therefore seeks views on whether the additional protection should be extended to some or all of those groups.

Interestingly the Consultation document also makes reference to the German system, whereby an employer is not allowed to dismiss a women during pregnancy without first securing consent from a public authority. This protection continues until 4 months after the birth and it is only in very exceptional cases that the authority will grant consent to the dismissal. Dismissal without such consent is automatically invalid. Unsurprisingly the document suggests the adoption of any such system would be “out of kilter” with the UK’s approach to the enforcement of employment rights and protections. Employers will no doubt be relieved to see that there is no question, even by way of consultation, of moves to introduce a system involving the requirement of an application for permission from any administrative authority in order to lawfully dismiss an employee.

Finally the consultation notes that WESC suggest that the 3 month time limit for bringing an Employment Tribunal claim in pregnancy and maternity discrimination cases, should be extended to 6 months. It is stated that data collected by HM Courts and Tribunal Service in relation to out of time applications to the Employment Tribunal, for which pregnancy and maternity discrimination was cited as a reason showed that in a period from January to June 2018 ”25 cases were accepted for late submission and none were rejected.” However it is unclear whether this data indicates that such cases really overcame the time limit or were merely accepted by the Tribunal with the employer reserving the right to make a “time bar” argument at a subsequent hearing. It is indicated however that BEIS will explore the evidence for changing employment tribunal time limits and will gather more data on its success rate of “out of time” tribunal claims for pregnancy and maternity discrimination cases. The Consultation document does not however have any questions relating to the extension of the tribunal time limit perhaps indicating that the prospects of this being changed are limited.

We seem to have come a long way from David Cameron’s “red tape challenge” and moves by Conservative governments to deregulate employment rights in the UK. Indeed latest reports indicate that Theresa May is contemplating fresh legislation to protect workers’ rights after Brexit. The prospect of strengthened protections in this area will no doubt be welcomed by many however the specific additional measures proposed in the consultation are unlikely to be significant game changers for employers or employees in the workplace. That said if the proposed extension of Regulation 10 is implemented this will inevitably throw up more challenges for employers and more exposure to claims in the tricky area of redundancy protection for women and new parents.

If you have any queries regarding the proposed reforms or any of the issues discussed above, please contact a member of the Stronachs Employment Team.

Eric Gilligan Partner

 

Chambers Leading Firm 2019

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