STAFF MATTERS: New Bill aims for greater protection against pregnancy and maternity discrimination

The Equality Act 2010 makes it illegal for employers to discriminate against women because of pregnancy, pregnancy-related sickness, or maternity leave.

The Act sets out a ‘protected period’ during which women who are pregnant or have recently given birth are explicitly protected from discrimination. Additionally, there is some protection for employees on maternity leave, shared parental leave or adoption leave if a redundancy situation arises.

Where it is not practicable for an employer to continue to employ an employee on maternity leave due to redundancy, the employee is entitled to be offered a suitable alternative role, giving them priority as they are entitled to be given first refusal of any suitable alternative vacancy.

Despite this, a 2015 survey commissioned by the government and the Equality and Human Rights Commission found that 77% of the mothers surveyed had a negative or discriminatory experience during pregnancy or maternity leave, or when returning to work from maternity leave. Of those surveyed, 11% reported feeling forced to leave their job, which could equate to as many as 54,000 mothers a year.

In 2019, the government announced that it would extend redundancy protections to ensure that redundancy protection applied from the time an employee notifies her employer of her pregnancy until six months after the end of maternity leave. However, there was no further action until June 2022 when a Private Members’ Bill named The Protection from Redundancy (Pregnancy and Family Leave) Bill was introduced.

The Bill has completed passage through the House of Commons and is currently moving through the House of Lords. If passed in its current form, it contains three clauses.

Clause 1 would give the Secretary of State regulation-making powers to make provisions that give redundancy protection to employees during a ‘protected period of pregnancy’ from when a woman tells her employer she’s pregnant until 18 months after the birth. The clause would allow the Secretary of State to make regulations that introduce provisions:

• requiring an employer to offer alternative employment to an employee facing redundancy during a protected period of pregnancy,
• introduce consequences for employers that fail to offer alternative employment in these circumstances, including allowing an employee’s dismissal to be considered unfair, and
• enabling the protected period of pregnancy to begin after the end of a pregnancy, for example, where an employee has miscarried before telling their employer.

Any regulations would be subject to the affirmative procedure, meaning both Houses of Parliament would have to actively approve the regulations before they could become law.

Clause 2 would allow the Secretary of State to make regulations about redundancy “during, or after” maternity, adoption, or shared parental leave. These regulations would also be subject to the affirmative procedure. Clause 3 would extend the Bill to England, Wales, and Scotland, and the provisions would come into force two months from the day the Bill was passed.

This Bill, if passed, could give rise to more unfair dismissal claims if employers can’t prove they’ve conducted redundancy consultations in a fair and consistent manner and offered suitable alternative employment. Although it’s unlikely to be introduced before 2024, it clearly reaffirms the government’s focus on improving family-friendly rights.

Gerard O’Hare is head of team and solicitor at WorkNest

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