Extending protection from maternity discrimination – what next?
31 / 05 / 2019
Recent research indicates that around a third of private sector employers believe it is reasonable to ask women about their plans to have children during recruitment. The Women and Equalities Select Committee also found evidence that new mothers are being forced out of work when they seek to return following a period of maternity leave. As a result, between January and April 2019, the government sought views as to whether extending the current period of protection against redundancy is an appropriate way of addressing these issues.
Currently, two main pieces of legislation offer legal protection in respect of pregnancy and maternity:
- The Equality Act 2010 – protects women from being discriminated against on the basis of maternity status during a “protected period” (which, where she has the right to maternity leave, runs from the start of the pregnancy until the return to work).
- The Maternity and Parental Leave etc. Regulations 1999 (“MAPLE”) – provides certain protections for those on maternity leave when faced with a redundancy situation such as the right to be offered a suitable alternative vacancy where one exists in priority over other employees at risk of redundancy.
However, MAPLE does not provide protection after the employee’s return to work from maternity leave. Therefore, the government is considering extending the protection under MAPLE so that the right to be offered a suitable alternative vacancy is extended to a 6-month period after the return to work. The idea of this is that this will provide the mother with a sufficient period to reintegrate herself into the business.
The government is also seeking views, amongst other things, on whether such protection should be extended to other forms of family related leave (e.g. adoption leave, shared parental leave and parental leave). It would make sense that such employees should also not be disadvantaged for taking childcare related periods away from work. However, the government would face the task of implementing these amendments which could be relatively complex in some areas. For example, how would extending the protection apply in respect of those who take shared parental leave, given that parents can choose to take such leave in multiple blocks?
Interestingly, the consultation document refers to the Women and Equalities Select Committee’s recommendation that the UK should introduce a system similar to that in Germany under which women can only be dismissed in specified circumstances up until the date four months after birth of the child, and permission for such a dismissal has to be granted by an authority. The government consultation document notes, however, that it believes that such a proposition would be “out of kilter with the UK’s approach to enforcement of equalities and wider labour rights“. The consultation closed on 5 April 2019 and the government are analysing the public feedback in order to provide a substantive response. With uncertainties remaining over Brexit, this issue could face further delays. However, now is a good time for employers to audit their own practices and to consider if they offer sufficient assistance to enable employees to take family friendly leave safe in the knowledge that this will not have a negative impact on their career progression.