Recent proposals by the government, following suggestions in The Taylor Review of Modern Working Practices, would see existing redundancy protections afforded to women on maternity leave extended to pregnant women and those who have recently (within six months) returned from a period of maternity leave. Further, the plans could extend those protections to people on adoption leave, Shared Parental Leave and longer periods of parental leave.
In light of these proposals to extend the existing legal obligations on employers, it’s a good opportunity to remind yourself of what the law currently requires employers to do when women on maternity leave are involved in a redundancy procedure.
The existing provisions are a rare example in English law of a lawful requirement for positive discrimination. Under regulation 10 of the Maternity and Parental Leave, etc Regulations 1999, if a redundancy situation arises during an employee’s maternity leave and ‘it is not practicable by reason of redundancy’ for the employer to continue to employ her under her existing contract, the employer must offer the employee any suitable alternative vacancy to start immediately after her existing contract terminates. This includes a requirement to offer a vacancy with an associated employer.
This means that if a woman on maternity leave is selected for redundancy she is given priority over other redundant employees when it comes to any suitable alternative vacancies.
However, it is important to note that regulation 10 is only triggered once the woman on maternity leave has been selected for redundancy. The fact that the woman is on maternity leave must not be factored into the selection process itself. If the employer does disproportionately factor in the maternity leave, or automatically selects the woman on maternity leave to be retained (taking her out of the pool for selection), this could lead to sex discrimination claims by male staff.
Failure on the part of the employer to comply with regulation 10 will allow the woman to claim automatic unfair dismissal, without the requirement for two years’ qualifying service that applies to ordinary unfair dismissal claims.
Problems can arise where there are more employees who qualify for protection under regulation 10 than there are suitable alternative vacancies. Clearly the chances of this will increase if the proposals mean that protection is extended to more categories of employees.
The government’s consultation paper can be found here: bit.ly/2HIm2qg. Responses are sought by 5 April 2019.
Nina Robinson is a director at ESP Law, provider of the HR Legal Service
