New (and rather modest) proposals on pregnancy and redundancy

On a dull and extended train ride home last night I was perked up by a report that the Government was extending the rights of pregnant women. The report from the BBC (based on this Government press release) says:

The government proposes extending legal protection against redundancy for pregnant women for six months after they return to work.

There is a rhetorical sleight of hand here. What would you think ‘legal protection against redundancy’ meant? Weary traveller that I was, I thought the idea would be that it would be unlawful to dismiss someone for redundancy within six months of them returning from maternity leave. That would be a bold proposal. The law currently prohibits dismissing someone because of pregnancy or maternity, but does not prevent a pregnant employee from being dismissed for some other reason such as redundancy. ‘Legal protection against redundancy’ sounds like a major reform.

Of course in the cold light of day – and now that the actual proposals have been published – it turns out that the Government’s plans are much more modest than that. The clue is that the Government is proposing to ‘extend’ the legal protection – it is widening an existing protection, not creating a bold new one.

The existing right is Reg 10 of the  Maternity and Parental Leave Regulations 1999 which requires a woman being made redundant during maternity leave to be offered alternative work when there is a suitable available vacancy. The Government is proposing to extend that right so that it begins when the women informs her employer that she is pregnant and continues to apply for six months after her return. The Government also suggests making similar provision in relation to employees taking shared parental leave and adoption leave  – who currently enjoy the same right to preferential access to suitable alternative work during the period of their leave as women on maternity leave (see here for adoption leave and here for shared parental leave)

This is a perfectly sensible reform – but let’s not overstate its impact. The proposal would not stop an employer from making an employee redundant when she was pregnant, on maternity leave, or recently returned. It would simply mean that if it did so – and it had suitable alternative work available – then it would be obliged to offer her that suitable alternative work. In real life, this is not much of a change.  It would have an effect when the redundancy is part of a wider exercise in which a number of people are being made redundant and there is a limited number of suitable alternative vacancies available. The protected employee will then go to the front of the queue. But the real problem with redundancy and pregnancy discrimination is surely the ‘pool of one’ selection where there is no wider reorganisation and the individual employee is just told there is no longer a job for her. The employee might believe that the situation has been engineered as a result of her maternity leave, but direct evidence of that fact can be hard to come by.  In such a case there is no queue for her to go to the front of and if there was alternative work available – there usually isn’t – it would already give good grounds for a discrimination claim if she wasn’t offered it.

The consultation runs until the 5th April and you can respond here. As with all Government consultations we should not rely on swift implementation. Government my well be preoccupied with other matters come April!


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About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in pregnancy discrimination, Uncategorized and tagged , , , . Bookmark the permalink.

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