Redundancy protection for pregnant women is not as simple as it appears, says Donna Reynolds
In January, the government published its response to the Women and Equalities Select Committee’s report on pregnancy and maternity discrimination from August 2016.
In it, the government acknowledged the committee’s report suggested areas where it could “further strengthen existing protections” for new and expectant mothers and made a commitment to review the position in relation to redundancy, not least because the government considered it unacceptable that independent research into pregnancy and maternity-related discrimination commissioned with the EHRC suggested 6 per cent of all mothers were made redundant and 2 per cent of all mothers were made redundant on their return to work from maternity leave.
Fast forward to October 2017 and the government was criticised by the charity Maternity Action in its report Unfair Redundancies During Pregnancy, Maternity Leave and Return to Work for failing to have consulted on this and for not providing any timeframe for doing so. According to Maternity Action, officials from the Department of Business, Energy and Industrial Strategy said the government is not planning any legislative changes.
Maternity Action is calling on the UK to adopt the German model of redundancy protection and sets out its reasoning in its report. It relies upon ECHR research which revealed an increase in the maternity discrimination suffered by new and expectant mothers in 2005 from 44 per cent to 77 per cent in 2016. Its research said in 2016, 54,000 pregnant women and new mothers were dismissed, made redundant or felt forced out of their jobs because of the way they were treated, 80 per cent higher than in 2005.
Maternity Action has said: “Women are losing their jobs through redundancies which are not real and redundancies which are discriminatory”.
Under the German model, employers are not permitted to dismiss pregnant women and new mothers except in specified circumstances. Maternity Action recommends these protections should be extended to fathers and partners taking paternity, shared parental and parental leave during pregnancy and their child’s first year. It argues this model is easy for both employers and employees to understand.
If introduced, such a law may well be easily understood by all, however, understanding the law and abiding by it are different things. As unpopular as this argument will no doubt be with campaigners for greater rights, such a change to the current legal framework would have far-reaching consequences for businesses and possibly unintended consequences for those trying to survive in uncertain economic times. Small employers could argue a prohibition on dismissing pregnant women and new mothers, fathers and partners on the grounds of redundancy when there is a genuine redundancy situation does not allow them to retain the employee with the best skills, experience and qualifications for the job. Depending on their size and composition, an employer may have no pool of employees from which it can make redundancies.
While it is necessary to show there has been unfavourable treatment in cases of discrimination, it is often relatively easy to identify the unfavourable treatment. The issue is the “because of” test; what was the employer’s conscious or subconscious reason for treating the women less favourably? Inquiries into the former are admittedly more straightforward and a blanket ban on the dismissal of any pregnant or new mother could remove the requirement to inquire into the mental processes of the employer. However, employment tribunals are proficient at asking, and determining, why the employer acted the way that it did.
The German model may prove to be a step too far for the UK or at least in the current economic climate. Maternity Action did make several other recommendations including extending the time limit for presenting a claim to the employment tribunal from three to six months and consolidating information or employers on a single website. Perhaps as interim measures these may go some way to eliminating discrimination or ensuring that women have the right of redress.
Donna Reynolds is a partner with CCW Business Lawyers