Extending Redundancy Protection: women and new parents - in depth - Gateley
In depth

Extending Redundancy Protection: women and new parents

Gateley Legal

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On 25 January 2019, BEIS opened a consultation seeking views on its proposals to extend the redundancy protection of new mothers from the date they notify their employer in writing of their pregnancy to six months after their return from maternity leave.

Alongside this, the consultation also seeks views on whether this protection should be extended to others taking similar leave, such as adoption leave and shared parental leave.

The government previously committed to strengthening the position of women in relation to pregnancy, maternity and redundancy, following reports that women are increasingly being forced to leave their jobs due to their pregnancy or maternity. 

What does the consultation propose? 

1. Extension of redundancy protection to new mothers for six months after return to work
BEIS proposes that the simplest way of achieving consistency and additional protection for new and expectant mothers is to extend the scope of the current protection against redundancy provided under the Maternity and Parental Leave etc Regulations 1999 (MPL Regulations) so that pregnant women and new mothers who have recently returned to work have the same protection as those on those on maternity leave. Under regulation 10 of the MPL Regulations, before making a woman on maternity leave redundant, an employer must offer them a suitable alternative vacancy where one is available with the employer, or an associated employer. 

What is a ‘suitable alternative vacancy’?

A suitable alternative vacancy is such that: 

  • The work to be done is both suitable and appropriate for her to do in the circumstances; and 
  • The capacity and place in which she is to be employed, and the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed in her old job. 

When deciding whether a vacancy is a suitable alternative for an employee, both limbs need to be satisfied. If the employee refuses a suitable offer, her dismissal for redundancy is likely to be fair. If she unreasonably refuses the offer, she will also lose her right to a redundancy payment. 
 

BEIS proposes that the protection under regulation 10 is extended by six months after the new mother returns to work.

2. Proposal for redundancy protection to begin from date employer informed in writing of pregnancy

3. BEIS also seeks views on when protection for pregnant women should begin. It seeks views on its proposal that this should be the date on which the employee notifies her employer in writing of her pregnancy.

4. Return to work period: BEIS also notes that there could be issues in determining when the return to work period should start, particularly where a period of maternity leave is followed immediately by a period of annual leave, special leave or a career break. Further, there is also the question of how any extended redundancy protection would work with shared parental leave, where parents chose to take that in multiple blocks (that is, a period of shared parental leave, followed by a period at work, followed by a further period of shared parental leave).

5. Similar leave: BEIS notes that those taking similar leave such as adoption leave, shared parental leave and longer periods of parental leave may also experience similar problems to women taking maternity leave. It therefore seeks views on whether the additional protection should be extended to some or all of those groups.

6. Tribunal time limits: The consultation states that the government has committed to consult to explore the evidence for changing employment tribunal time limits for claims relating to discrimination, harassment and victimisation, including on grounds of pregnancy and maternity. There are, however, no questions relating to extending the tribunal time limit in the consultation document but the potential extension of employment tribunal time limits forms part of the Law Commission consultation on employment law hearing structures. 

You can respond to the consultation and give your views before it closes on 5 April 2019. 

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