Two thirds of businesses admit being ‘unclear’ on plans to enhance redundancy protections for pregnant workers

Following research revealing employers are unsure of the potential reforms, People Management asks employment law experts what needs to be actioned

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Two thirds (67 per cent) of UK businesses admit they are “unclear” about proposed government measures to protect workers on maternity leave from redundancy.

The WorkNest study of 737 employers in May found that while the majority of businesses were not sure about the proposed changes, one quarter (24 per cent) were aware and had started to review what needed to be done.

However, only 2 per cent have updated their policies and procedures already in anticipation of the change. 

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Alexandra Farmer, head of team and solicitor at WorkNest, says the Protection from Redundancy (Pregnancy and Family Leave) Bill is moving forward at a time when businesses are understaffed, either as a result of difficulty hiring or staffing reductions, so it is understandable that allowing more flexibility across the board and providing some employees with additional entitlements may be difficult to accommodate.

“There has been a lot of inactivity on [certain] bills since many were included in the queen’s speech in 2019; however, they now seem to suddenly be moving at pace. It’s crucial that workplaces are flexible and family friendly so employers should get the relevant advice on how to successfully make the required adaptations for staff as they come into force,” she says. 

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What is changing 

The bill, which is well on its way through the House of Lords, would make amendments to the Employment Rights Act 1996.

Under regulation 10 of the Maternity and Paternity Leave Regulations 1999, employers have an obligation to offer suitable alternative employment, where a vacancy exists, to a parent who is on maternity leave if their job is at risk of redundancy.

The protection currently provided is only good for the duration of maternity leave. But under the proposed new rules, the window of time during which a worker is exempt from being laid off would be extended to safeguard pregnant employees from the time they disclose their pregnancy to their employer until 18 months after the baby is born.

The secretary of state would have the authority to introduce provisions to extend the current protection from redundancy to periods during or after pregnancy or after periods of maternity, adoption or shared parental leave if the bill were to pass in its current form.

What employers need to do

While it is unclear when the new rights will come into force, Ray Silverstein, head of employment at Browne Jacobson, says employers may want to anticipate them by providing such protection from redundancy during and after an individual has taken these types of leave; for example, for six months after the employee returned from leave. “A woman on maternity leave whose job is being made redundant is entitled to be offered alternative employment with their employer or an associated employer, in any suitable vacancy available that offers work appropriate for her and terms not substantially worse than her previous job,” he says. 

On a similar note, Jo Moseley, employment law expert at Irwin Mitchell, explains that, under current rules, “employers are obliged to offer them a suitable alternative vacancy where one exists in priority to anyone else who is provisionally selected for redundancy”.

“The government has said that protection will start from the point at which the employee tells their employer that they are pregnant. Therefore, a woman who takes the maximum maternity leave of 52 weeks will get over a year’s additional protection,” Moseley adds.

This will increase the number of people who are “eligible” to receive priority in a redundancy situation, she explains, which “employers may find challenging to manage, especially if more than one person included in the provisional selection has the right to be offered an alternative role available”.

“That might occur where two women are pregnant or on maternity leave and one man is on shared parental leave. The employer will need to decide which of these three people it offers the alternative job. It will need to act fairly,” Moseley says.

One option is to conduct a competitive interview and choose the top candidate out of the three, while a second option is to offer the position to the person with the highest redundancy pooling score.

Read why Dan Jarvis MP spearheaded the bill for increased protection for pregnant workers and those post maternity in his exclusive blog for People Management here