Greater redundancy protection for pregnant women and new parents is on the horizon

In a recent press release, the government announced that pregnant women and new parents will receive greater protection from redundancy under proposed new legislation set out in The Pregnancy and Maternity Discrimination bill (the “bill”). The government believes this will “help shield new parents and expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives”.

The proposed legislation has been a long time coming. The government originally announced its intention to extend redundancy protection for new parents in 2019 following the 2016 review by the Equality and Human Rights Commission into pregnancy and maternity discrimination at work which revealed that up to 54,000 mothers a year faced discrimination due to having taken a period of maternity leave.

What are the current protections afforded to new parents?

Under current legislation, before making an employee on maternity, shared parental or adoption leave redundant, employers must offer them a suitable alternative vacancy (if one exists) in priority to anyone else who is provisionally selected for redundancy. To decide if a vacancy is suitable and appropriate, it must not be substantially less favourable than the employee’s previous job with regard to location, terms and conditions and status.

This is a rare example of lawful, positive discrimination and the consequences of a failure to comply can be significant. If an employee is dismissed as redundant in breach of this requirement, the dismissal will be automatically unfair. A failure to comply may also constitute discrimination.

What protection will new parents receive under the bill?

The new bill, if implemented, will:

• Widen the scope of protection to pregnant women and to new parents who have recently returned to work from maternity, shared parental or adoption leave
• Extend the redundancy protection period so that it begins when an employee informs her employer that she is pregnant and ends 18 months from the start of maternity leave. Similar provisions will apply to staff who are adopting a child or taking a period of shared parental leave.

According to the government press release: “The 18-month window ensures that a mother returning from a year of maternity leave can receive 6 months additional redundancy protection”.

What does this mean for schools?

We expect the increased protection to operate in the same way as it does currently for women on maternity leave – i.e. at the stage of applying for or allocating suitable alternative employment.

As such, schools will still be able to make pregnant women or new parents redundant in the protection period provided:

• There is a genuine business need to make redundancies and
• The school have followed a fair process prior to making the decision to proceed with the redundancies.

As part of that fair process, all relevant employees, including pregnant women and new parents, should form part of the redundancy pool and fair and objective selection criteria should be applied to determine those who will be provisionally selected for redundancy.

If a pregnant woman or new parent is provisionally selected for redundancy within the protection period, they will have the right to be offered any available suitable alternative vacancy in priority to other employees who are not afforded the additional protection.

The new law is expected to reflect the current position in terms of determining whether a vacancy is a ‘suitable’ alternative (as set out above).

When will the changes be implemented?

To date, the government has not given any indication as to when the proposed new legislation will be implemented. Given the current political landscape, it is also worth noting that the bill was backed by the former government and it remains to be seen whether the current government supports it.

We will keep schools updated on any further developments in this area.