Pregnant women and new mothers at risk of unfair redundancy

9 November, 2017

Maternity Action has this week published a report on unfair redundancies during pregnancy, maternity leave and return to work, and has called for changes to the existing legal framework governing redundancy.

Research undertaken by the Equality and Human Rights Commission in 2016 found that 77% of pregnant women and new mothers had experienced discrimination or negative experiences during pregnancy, maternity or return to work, and that 11% of mothers lost their job due to maternity discrimination each year.  This figure consists of women who were dismissed, unfairly made redundant or felt forced to resign as a result of the adverse treatment they received.

Current legal framework

Employers can dismiss employees for redundancy if they need fewer employees to do the work or a business is closing down or moving location.  The employer must also ensure a fair selection procedure is carried out, conduct proper consultation and consider offering opportunities for alternative employment.

Employees selected for redundancy because of pregnancy or maternity leave will have potential claims for automatic unfair dismissal and/or pregnancy and maternity discrimination.  These are “day one rights”, without a qualifying period required to pursue these claims.  The current legislation also provides additional levels of protection for women made redundant during maternity leave.  In particular they are entitled to be offered a suitable available vacancy, if there is one, in priority to other employees and without having to go through normal selection procedures.  Failure to offer a suitable available vacancy may also provide grounds for unfair dismissal and discrimination claims.  This additional protection does not however apply to employees during pregnancy or after their maternity leave has ended.

Issues

Employees and employers often do not fully understand their particular rights and obligations in the context of redundancy situations which affect women during pregnancy and maternity leave.  In this context there are substantial risks for employers of making redundancy dismissals which are not genuine, or mishandling redundancy procedures so as to present the grounds for unfair dismissal and/or pregnancy and maternity discrimination claims against them.

Whilst women have the right to pursue claims if they are unfairly dismissed or subjected to discrimination, very women do so.  The EHRC research found that only one in four women who experience discrimination raise this with their employer, and fewer than 1% pursue Tribunal claims. A variety of reasons are put forward for not making complaints or taking formal action.  Pregnancy and new motherhood place significant pressures on women mentally, physically and financially – and pursuing a legal claim against an employer can be too stressful to contemplate let alone progress, especially given the high hurdle of proving discrimination claims and legal complexities involved.

Recommendations

The report views the current legal framework as inadequate to protect women from unfair redundancies during pregnancy and maternity leave.  It calls for a change in legislation so that it is made simple and easy for women and their employers to understand; it is consistent across pregnancy, maternity leave and return to work; and that it is not for the woman to prove unfavourable treatment.  It advocates a legislative model which restricts employers’ ability to make pregnant women and new mothers redundant to specified circumstances only, such as closure of the business.  It also proposes an extended time-limit of six months for these employees to pursue Tribunal claims.

Please contact one of our employment team if you require advice surrounding redundancy proposals and processes and particularly in meeting your legal obligations towards employees who are pregnant or new mothers.