As the law in England currently stands, before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with her employer, his successor or an associated employer. This requirement is contained in Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (MPL Regulations 1999). A similar protection also exists for new parents on adoption leave and shared parental leave.
In January 2019, the government published a consultation on extending these redundancy protections and also on potentially extending the 3 month tribunal time limit for bringing pregnancy and maternity discrimination claims.
This consultation found that new parents continue to face unfair discrimination, with research indicating that approximately 54,000 women a year feel they have to leave their jobs due to pregnancy or maternity discrimination.
On 22 July 2019, the government published its response to the consultation and announced that it will legislate to extend the current redundancy protections in the MPL Regulations 1999. The protection will be extended to apply from the point the employee notifies the employer of her pregnancy, whether this is orally or in writing, and will continue to apply for a period of 6 months after her maternity leave ends. This is regardless of any additional leave the woman may take. This could result in pregnant women and new mothers receiving up to 2 years of redundancy protection.
In relation to new parents returning from adoption leave, the government has confirmed that it will legislate to extend the redundancy protection period for six months following the employee’s return to work.
The government has also confirmed that it will legislate to extend protections for those returning from shared parental leave, however it is currently working to identify how this new protection should operate. Shared parental leave is different to maternity or adoption leave, as it can be taken for very short periods or in multiple discontinuous blocks, and therefore although it is believed that additional protection should be given, the protection should be proportionate to the length of leave taken.
There is no proposed extension of protection for those returning from paternity leave. The government considers the purpose of the extended period of protection is to ensure employers do not make early judgements on performance in the first few months of an employee returning to work after an extended period of absence, which does not apply to paternity leave as it is limited to 2 weeks. Therefore, there is no justification for extending the additional protections to those returning from paternity leave.
In its response to the consultation, the government has also announced plans to establish a taskforce, made up of employer and family representative groups to make recommendations on what improvements can be made in relation to information available to employers and families on pregnancy and maternity discrimination.
The government will also produce an action plan on what steps it and other organisations can take in order to make it easier for pregnant women and new mothers to stay in work, and make recommendations on raising awareness of employer obligations and employee rights.
The government’s response to the consultation, together with the plans set out above, has obtained resounding support from both the respondents to the consultation and the Women and Equalities Select Committee, and will be welcomed by many as a positive change for protecting new parents returning to work.
However, employers should be aware of the potential issues these reforms could raise.
Given the already complicated nature of shared parental leave itself, one issue will be the potential complexities of the new protection scheme for those returning from shared parental leave and how the model for determining the protections will work. It is likely that the model will be complex, and could cause difficulties for Employers in determining exactly when employees are protected or not.
Additionally, there are potential issues for employers in identifying and documenting when the protections begin, as the protection begins with the date on which the employee notifies her employer of the pregnancy, be it orally or in writing. It may become difficult to pinpoint this date if no clear note is taken of oral notifications. Therefore, employers should ensure they have satisfactory policies in place for recording any oral notifications of pregnancy in order to identify when the period of protection commences.
The government’s response in relation to the element of the consultation dealing with time limits for bringing pregnancy and maternity discrimination claims will be provided later in the year, in order to coincide with a further consultation on workplace sexual harassment and time limits for all types of discrimination claims, which closes in October 2019.
In addition to the above consultation, on 19 July 2019 the government launched a further consultation on the introduction of a new entitlement, Neonatal Leave and Pay, for parents of premature and sick babies who need to spend an extended period of time in neonatal care following birth. This would mean fathers no longer having to use annual leave or take unpaid leave if the period of time spent in neonatal care exceeds their paternity leave entitlement.
It is clear that the government is looking at extensive options for reforming the law surrounding the rights and entitlements of new parents, and it is possible that the government will create a whole package of related reforms. As such, it is important that employers are aware of these changes and keep an eye out for updates, which we will provide as soon as further responses are announced by the government.
To discuss any of the issues raised in this article or for specific employment law advice, including details of our training, please contact Annabel Denby-Hollis on T.0114 228 3256 or any of our experienced employment law team.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.