ELA response to the BEIS Consultation on extending redundancy protection for women and new parents

Executive Summary

1. A six-month “return to work” period may help a new parent who has taken extended family leave to re-establish themselves in the workplace.

2. An alternative approach could be to run the period of protection for a set period, such as 18 months, from the date of the birth/placement.  This approach has the advantage of certainty and simplicity but could result in employees who take shorter periods of family leave having a long period of post-return protection.

3. An extension of Regulation 10 of Maternity and Parental Leave etc. Regulations (1999) (SI 1999/3312) (‘MAPLE’) protection will not protect women from a minority of employers who will discriminate against pregnant employees and new mothers regardless of their legal rights. However, it would provide women with greater redress in limited circumstances and counter avoidance tactics by employers.

4. Pregnancy, for redundancy protection purposes, should be defined as starting at the point a woman informs her employer that she is pregnant but that this does not need to be in writing.  However, in line with current legislation, employers should have a right to request, following an oral notification, that the employee confirms their pregnancy in writing.

5. The most direct equivalents to return to work from statutory maternity leave  are adoption leave and shared parental leave.  This is on the basis that they are forms of leave that can potentially be taken by a parent, not just the birth mother, for longer periods. The law currently provides protection from detriment and/or unfair dismissal where treatment/dismissal is because of pregnancy/maternity leave/adoption leave/shared parental leave, so it may be regarded as illogical, confusing and potentially discriminatory for enhanced redundancy protection to be given only to those who take maternity leave.

6. ELA shares the view expressed in the consultation documents about the difficult technicalities of implementing enhanced redundancy protection in the context of shared parental leave.  ELA’s view is that no distinction should be made between shared parental leave taken in one block vs discontinuous blocks or based on which parent is taking the leave.

7. ELA does not take a stand on policy matters, but we have set out below the potential implications of extending MAPLE protection to other groups.

7.1 On balance ELA’s view is that given the current lack of statutory framework around career breaks additional protection would be difficult to implement without a legal framework to attach the right to.

7.2 Surrogates and intended parents could both be covered by the extended protection, as the types of leave identified above could also be included in the extension of the protection.

7.3 ELA believes it would not be logical to extend the right to parental bereavement leave when that leave comes into force.

8. Experience amongst ELA committee members suggests that there is still a lack of awareness of certain employment rights amongst pregnant women and new mothers. These rights include the right to accrue holiday during maternity leave and the right to be offered suitable alternative employment in a redundancy situation.  There is a particular lack of awareness of employment rights for new and expectant mothers who are engaged as workers.

9. ELA committee members reported that employer clients were also often confused and unsure about their rights and obligations in relation to pregnant women and new mothers.  In many cases, it was sensed that there was a nervousness by employers to make decisions relating to pregnant women or new mother’s employment because of the fear of acting unlawfully, which is not necessarily good for business.

10. ELA considers that things could be improved by adopting our suggestions regarding:  the Government (.gov) website; NHS Start4Life; and ACAS guidance as set out in response to Question 21 to this consultation (see below).

11. Regarding the Working Forward campaign, ELA considers more needs to be done to raise the profile of the campaign. ELA  suggests advertising this within pages that employers/individuals might visit, such as .gov, ACAS and advertising more on social media.

12. The government might provide a video, pamphlet and/or flier setting out the basic rights for women in the workplace (either employees or workers). This could be given to women with their MATB1 form.  A similar short video, pamphlet or flier could be provided by ACAS (in an electronic form) to give a basic overview of maternity / family friendly rights that could be available to employers via the ACAS website. This document could set out the basic rights to provide awareness, and then employers could be directed to the fuller guidance elsewhere.

13. ELA suggests that it would be helpful for it to be a requirement for employers of a certain size (for example employers with over 250 employees), and recommended for all employers, to have a family friendly rights workplace champion.

14. ELA considers it should be a mandatory requirement for employers to have a maternity, paternity, shared paternity leave, adoption and flexible working policy, including reference to pay, in the Staff Handbook, and for that Handbook to be easily accessible by staff.

Members of the Working Party

Catrina Smith, Norton Rose Fulbright LLP: co-chair
Elizabeth Drake, Metropolitan Police’s Directorate of Legal Services:  co-chair
Tom Bernard, Howells
Rachel Easter, CMS Cameron McKenna Nabarro Olswang
Ceri Fuller, DAC Beachcroft LLP
Rachel Hearn, Charles Russell Speechlys LLP
Lara Kennedy, Leigh Day
Tammy McDermott, King’s College London
Bina Patel, Archon Solicitors Limited
Jessica Piper, Ashtons

The legal content in this article is believed to be correct and true on this date.