In the light of proposed new legislation on women’s rights when pregnant or on maternity leave, lawyer Karen Holden outlines your rights if you are made redundant while pregnant.
The current economic climate is precarious and it is highly likely we will see more redundancies in workplaces over the coming months. The impact of redundancy is significant for many people, especially for pregnant women who are already going through a lot, although it may, if we are optimistic, open up new opportunities, such as new start-ups.
In the UK, pregnant women who are made redundant have legal protection, but unfortunately, this protection is not always enough. Pregnant women and those who are commencing their parenting journey have been identified from research as being at a higher risk of potential discrimination. This has long been a concern for many who find themselves ‘let go of’ before , during or after the birth of their child. This has resulted in proposed new legislation, The Protection from Redundancy (Pregnancy and Family Leave) Bill. The Bill was put forward in 2022 and is currently with its third reading in the House of Lords. In the current climate, the finalising of this legislation is keenly awaited.
What difference could this legislation make?
Under current rules, before making an employee redundant, if they are on maternity leave, shared parental leave or adoption leave, employers are obliged to offer them a suitable alternative vacancy where one exists in priority to anyone else who is also in the redundancy pool at the workplace.
This new bill will extend the existing protection to pregnant women and will apply before they start maternity leave and after they return to work. It will also protect new parents returning to work from adoption or shared parental leave. The idea is that this legislation will “shield new parents and expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives”.
The draft bill makes it clear that protection will start from the point at which the employee tells their employer that they are pregnant and then end 18 months from the start of their maternity leave. Therefore, a woman who takes the maximum maternity leave of 52 weeks will get an extra six months’ protection more than she would have under current legislation. Similar timeframe provisions will apply to people who are adopting a child or taking shared parental leave.
Does this mean employers won’t be able to make pregnant women redundant?
No, it doesn’t as redundancy is a potentially fair reason for dismissing an employee. The five fair reasons are: the work is no longer needed, new processes have been introduced, other employees are covering the work, the business is closing and the business is relocating.
However, in any of the above redundancy situations, a fair procedure must be followed too and carefully documented. This will normally entail deciding who is in the pool for redundancy and adopting a fair selection procedure. All relevant employees including pregnant women should then be pooled. However, if a pregnant woman is provisionally selected for redundancy, she will have the first right to be offered any suitable alternative vacancy that exists in the organisation. This means she takes priority over every other candidate who is not on maternity or other relevant leave.
Employers must also take steps to ensure that pregnant women are not unfairly disadvantaged by the redundancy process. Employers must not discriminate against pregnant women when making them redundant. This includes not selecting them for redundancy because of their pregnancy or related sickness absence. Employers must also take steps to ensure that pregnant women are not unfairly disadvantaged by the redundancy process.
There are sometimes issues when more than one employee in a selection process has the right to be offered ‘any suitable vacancy’. This might occur where two women in the same department are pregnant and/or on maternity leave or adoption leave at the same time (something that might happen more often once protection is extended over a longer period). Clearly, each workplace will have to develop their own fair procedure to address this and depending on the size of the workplace, it could have a large impact.
Aims of the change
The hope with this proposed legislation is that those starting families and returning or due to return to work from parental leave or maternity leave will be afforded a further period of protection. This is to avoid what has been identified as potentially discriminatory practices by some employers in these situations and the difficulties this can lead to for those at the beginning of a parenting journey. The legislation recognises the risk and offers extended protection as a consequence.
However, employers will also need to watch and monitor after the redundancies have been completed that pregnant staff members or those returning to work are not treated differently by staff members who may resent them being chosen over others as this could be a possible emotional reaction and must be carefully addressed.
Pregnancy and maternity Leave
Currently, if a pregnant woman is made redundant, she may still be entitled to maternity pay and leave, even if she is not employed when her baby is born. To qualify for statutory maternity pay, the woman must have been employed continuously for at least 26 weeks by the 15th week before the expected week of childbirth.
If you are not entitled to statutory maternity pay, you may still be entitled to maternity allowance, which is paid by the government. To qualify for maternity allowance, you must have been employed for at least 26 weeks in the 66 weeks before the expected week of childbirth.
Rights of pregnant women
Pregnant women have several legal rights that protect them from discrimination in the workplace. These include protection against unfair treatment, such as being denied a promotion or training opportunity, because of their pregnancy or maternity leave.
Employers must also provide a safe working environment for pregnant women. This includes carrying out a risk assessment and making necessary adjustments to ensure the safety of the mother and her unborn child. If it is not possible to make these adjustments, the employer may need to temporarily suspend the woman from work on full pay.
What to do if you are made redundant
If you are made redundant while pregnant, there are several steps that you can take to protect your rights. Firstly, speak to your employer and ask them to explain why you have been selected for redundancy. If you believe you have been unfairly selected, you can raise a grievance with your employer.
If you are unable to resolve the issue with your employer, you may wish to seek legal advice. You can contact the Equality Advisory and Support Service, ACAS or a solicitor who specialises in employment law.
In conclusion, redundancy can be a stressful time for anyone, but it can be particularly challenging for pregnant women. However, pregnant women in the UK have legal protection against discrimination and are entitled to maternity pay and leave. If you are made redundant while pregnant, it is important to know your rights and take action to protect yourself.
In some circumstances, pregnant women or those on adoption/parental leave may be pleased with a redundancy situation. Others will not be, but will find themselves embracing new directions. Many female entrepreneurs are born when there is a change in their personal circumstances. The change from employee to self-employed can often take place as a consequence of redundancy, with the buffer of a redundancy payment and the desire to manage the work life balance as master of one’s own destiny.
Lots of mothers who were made redundant have gone on to start their own businesses and made a success of them. Taking legal advice at the point you are aware of the redundancy can be really helpful in understanding not only your rights but also the payments due and whether additional payments can be obtained because of the circumstances leading up to the redundancy itself, for instance, discriminatory treatment or the lack of fair procedures being followed. Please do get in touch should you wish to understand your position on redundancy further as we are always happy to help and, with the right advice at the right time, a threat of redundancy can be reframed as a positive re-direction.