Redundancy and pregnancy or maternity leave: what employers need to know

A new survey shows that 67 per cent of UK businesses are “unclear” about proposed legislation currently making its way through Parliament to extend the rights of those who are pregnant or on maternity leave when it comes to  redundancy.

The WorkNest poll of 737 employers found many employers were unclear about the proposed changes, with only 24 per cent aware and starting to review how they can adapt their policies and practice in line with the legislation. However, only two percent have taken action.

The proposed new legislation, The Protection from Redundancy (Pregnancy and Family Leave) Bill, was put forward in 2022 and is expected to be finalised this year.

What difference could this legislation make?

Under current rules, before making an employee redundant, if they are on maternity leave, shared parental leave or adoption leave, employers are obliged to offer them a suitable alternative vacancy where one exists in priority to anyone else who is also in the redundancy pool at the workplace.

This new bill will extend the existing protection to pregnant women and will apply before they start maternity leave and after they return to work. It will also protect new parents returning to work from adoption or shared parental leave. The idea is that this legislation will “shield new parents and expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives”.

The draft bill makes it clear that protection will start from the point at which the employee  tells their employer that they are pregnant and then end 18 months from the start of their maternity leave. Therefore, a woman who takes the maximum maternity leave of 52 weeks will get an extra six months’ protection more than she would have under current legislation. Similar timeframe provisions will apply to people who are adopting a child or taking shared parental leave.

Does this mean employers won’t be able to make pregnant women redundant?

No, it doesn’t as redundancy is a potentially fair reason for dismissing an employee. The five fair reasons are: the work is no longer needed, new processes have been introduced, other employees are covering the work, the business is closing and the business is relocating.

However, in any of the above redundancy situations, a fair procedure must be followed too and carefully documented. This will normally entail deciding who is in the pool for redundancy and adopting a fair selection procedure. All relevant employees including pregnant women should then be pooled. However, if a pregnant woman is provisionally selected for redundancy, she will have the first right to be offered any suitable alternative vacancy that exists in the organisation. This means she takes priority over every other candidate who is not on maternity or other relevant leave.

Employers must also take steps to ensure that pregnant women are not unfairly disadvantaged by the redundancy process. Employers must not discriminate against pregnant women when making them redundant. This includes not selecting them for redundancy because of their pregnancy or related sickness absence. Employers must also take steps to ensure that pregnant women are not unfairly disadvantaged by the redundancy process.

There are sometimes issues when more than one employee in a selection process has the right to be offered ‘any suitable vacancy’. This might occur where two women in the same department are pregnant and/or on maternity leave or adoption leave at the same time (something that might happen more often once protection is extended over a longer period).  Clearly, each workplace will have to develop their own fair procedure to address this and depending on the size of the workplace, it could have a large impact.

Aims of the change

The hope with this proposed legislation is that those starting families and returning or due to return to work from parental leave or maternity leave will be afforded a further period of protection. This is to avoid what has been identified as potentially discriminatory practices by some employers in these situations and the difficulties this can lead to for those at the beginning of a parenting journey. The legislation recognises the risk and offers extended protection as a consequence.

However, employers will also need to watch and monitor after the redundancies have been completed that pregnant staff members or those returning to work are not treated differently by staff members who may resent them being chosen over others as this could be a possible emotional reaction and must be carefully addressed.

Pregnancy and maternity Leave

Currently, if a pregnant woman is made redundant, she may still be entitled to maternity pay and leave, even if she is not employed when her baby is born. To qualify for statutory maternity pay, the woman must have been employed continuously for at least 26 weeks by the 15th week before the expected week of childbirth.

If you are not entitled to statutory maternity pay, you may still be entitled to maternity allowance, which is paid by the government. To qualify for maternity allowance, you must have been employed for at least 26 weeks in the 66 weeks before the expected week of childbirth.

Rights of pregnant women

Pregnant women have several legal rights that protect them from discrimination in the workplace. These include protection against unfair treatment, such as being denied a promotion or training opportunity, because of their pregnancy or maternity leave.

Employers must also provide a safe working environment for pregnant women. This includes carrying out a risk assessment and making necessary adjustments to ensure the safety of the mother and her unborn child. If it is not possible to make these adjustments, the employer may need to temporarily suspend the woman from work on full pay.

*Karen Holden is founder of A City Law Firm. 

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