Redundancy Whilst On Leave

One in twenty employees have been made redundant during pregnancy, maternity leave and on return to work. Charlotte McBride, specialist employment lawyer at Collingwood Legal, explores the implications and reactions to this report.

Maternity Action, a leading UK charity committed to ending inequality experienced by pregnant women, published a Report on Unfair Redundancies in November which highlights the alarming numbers of mothers facing redundancy, many of which Maternity Action claim were unfair dismissals. Further, around 390,000 women reported they had negative experiences during pregnancy and on return to work.

The ONS released data this year that shows that the most popular time for babies to be born is 26th September. That means many employers might be preparing for expectant mothers announcing their news as we enter 2018. However, the turn of the year can also mark a key planning period for many businesses looking to streamline operations. So how do employers deal with this period of change without falling foul of the changing landscape of equality law?

It is a cornerstone of UK equality law that individuals are protected from discrimination because of a particular ‘protected characteristic’. These include a person’s gender as well as a woman’s pregnancy or maternity. UK law also goes further and provides enhanced protection to those on maternity leave in redundancy situations including obligations on employers to inform those expectant or new mothers of proposed redundancies affecting them (often in their absence) and to offer alternative employment as a priority where it exists.

Given the legal protections these women should be enjoying the question being asked is: “Are we doing enough to protect women in the workplace?” When you consider that the treatment Maternity Action reports has come to light at a time when we have been shocked by the revelations of widespread sexual harassment of many women in the entertainment industry and within UK politics, the answer to the question appears to be “no”, we aren’t doing enough.

As a result equality and anti-discrimination initiatives in the workplace are very much back on the agenda. Maternity Action’s Report includes a recommendation that, other than in some limited circumstances, women should be protected from unfair redundancy from notification of pregnancy through to 6 months after returning to work. It remains to be seen whether the Government follows through on its promise to review redundancy protection.

However, the European courts have recently thrown a ‘curve-ball’ into the mix. Under UK law a ‘pregnant worker’ is one who has notified their employer of their pregnancy whilst the ‘protected period’ is from the start of pregnancy to the end of maternity leave. It is accepted practice in the UK that a woman will not generally benefit from legal protection until they have notified their employer. However, in a recent opinion the Advocate General of the European Court of Justice (ECJ) identified a conflict in the wording of the Directive, which underpins UK law, and suggested that protection for mothers against dismissal should apply from the start of pregnancy regardless of whether an employer knows she is pregnant. This opinion has the potential to change the ‘status quo’ and an employer may unwittingly dismiss as redundant an employee without ever knowing they were pregnant. Such a dismissal would potentially be discriminatory.

We may have come a long way in addressing gender inequality in the workplace but recent media coverage and Maternity Action’s report shows there is still much to be done. Only time will tell if the Advocate General’s opinion will be followed by the ECJ and whether any practical clarification will be offered to employers. With Brexit at the forefront of the Government’s mind it could take some time for Maternity Action’s recommendations to be considered but as Theresa May has committed to fixing the issue of discrimination from within, this may translate into legislative reform in the near future.