The Department for Business Energy and industrial Strategy (BEIS) are currently consulting on whether to offer women who return to work after maternity leave greater job protection.
At present the law states that if a woman on maternity leave is selected for redundancy, the employer is under an obligation to offer her any suitable alternative vacant position in preference to other colleagues, if such a post is available. However, the protection only applies whilst she is on maternity leave. No such protection currently exists following the end of the maternity leave period when the woman returns to work, or whilst she is pregnant. BEIS are consulting over whether to extend the period of protection to cover women from the time they notify their employer in writing that they are pregnant, until 6 months after they return from maternity leave. The Government are also consulting on whether to extend such rights to those on adoption leave, shared parental leave and longer periods of parental leave in which case new parents may benefit from greater rights, regardless of gender.
The Prime Minister referred to the difficulties frequently faced by women returning from maternity leave, when they come back into the working environment, at the time the proposals were announced. She commented that ‘it’s unacceptable that too many parents still encounter difficulties when returning to work. Today’s proposals are set to provide greater protection for new parents in the workplace and put their minds at ease at this important time’. Her comments were based on research that shows that prejudice towards women over taking time off to have children is still rife. A survey conducted by the EHRC in 2017 found that around a third of private sector employers felt it was reasonable to ask a woman about their plans to have children during the recruitment process. The Women and Equalities Select Committee research also found that new mothers were being forced out of work on their return to the workplace, whether by reason of redundancy or otherwise.
The Taylor review, commissioned by the Government, highlighted that there was confusion amongst employers as to what their obligations to women were and how they changed over the pregnancy, maternity leave and return to work period. The report recommended greater uniformity and simplicity in approach. By extending the protection over the course of the entirety of the period, the suggestion is that employers will only have to apply the one rule and less confusion will result.
However, the proposals are controversial. The redundancy process is intended to require an employer to carry out a fair and objective selection process to determine who should be made redundant. By giving pregnant employees, those on maternity leave and those recently returned from maternity leave added protection, other employees who do not fall within such criteria are at greater risk of ultimately being made redundant. Such a change in approach could affect older workers and male employees to a greater degree. Criticism has been raised that rather than the redundancy process being based on merit and skills for the role through a fair and objective assessment, employers will be forced to positively discriminate in favour of pregnant women.
The proposals may also be difficult to apply. For example, in the case of shared parental leave, where the parents can take multiple blocks of leave in the first year of a child’s life and come back to work in between each block, how would the return to work period operate? What would happen where a woman takes maternity leave, then uses up her annual leave before returning to work? Would the annual leave period count as returning to work, even though she had not physically returned? Parental leave allows up to 18 weeks’ leave per child, with a maximum of 4 weeks entitlement per year up to a child’s 18th birthday. Again, how would the protection operate in respect of their return to work if leave is taken over a series of years? How long would the parent have to be on parental leave for to gain the protection above, given such leave can be taken in blocks of a week?
In Germany female employees are protected from being made redundant during pregnancy and for 4 months’ following birth unless they have the consent of the public authority to do so which is rarely given. Without it, the dismissal is invalid. The Government are not suggesting that a similar enforcement method is used in the UK, although this was recommended in the Taylor review.
In the meantime, calls to plug the gaps in gender pay gap reporting have been side-lined and no immediate changes will be made to the legislation.
Whilst calls to extend the legislation to companies with 50 or more employees will not be implemented at present, the Government may revisit the issue in the future. Criticism had been levelled at the fact that the remuneration of partners were excluded from the gender pay reporting regime, meaning the figures produced by the majority of law firms didn’t reflect the real gender pay gap as partnership income was not taken into account. The Government have indicated that they will consider altering the guidance in future reporting years to introduce a voluntary reporting mechanism but no compulsory system is to be introduced in the near future.
Neither is there any intention to refine the information to be reported by employers into a breakdown of full time and part time gender pay gap statistics and the status quo will remain in place – at least for now. The Government is obliged to carry out a review of the legislation within 5 years of it being introduced. However, it is clear from the Government’s response to the report from BEIS that it has no intention of revising gender pay gap reporting requirements in the near future and causing further upheaval for employers.
We are guessing that employers may have enough on their plates to be getting on with in the next few months managing their businesses!
For further advice or help with any of the issues raised in this article, please contact Angela Gorton.
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.