Colleges must prepare for new protection rules for pregnant staff

Pregnant women and new parents will receive greater protection from being made redundant under new proposed legislation. The Protection from Redundancy (Pregnancy and Family Leave) Bill started life as a Private Members’ Bill but is being backed by the government and, therefore, is likely to become law. Helen Dyke, an employment law specialist at Irwin Mitchell, explains what colleges need to be aware of. 

Background

This legislation has been a long time coming. In 2019 the government said that it would introduce legislation to extend redundancy protection for employees taking maternity leave (and for other new parents) following the Equality and Human Rights Commission’s 2016 landmark investigation into pregnancy & maternity discrimination at work. Its report concluded that up to 54,000 mothers a year faced discrimination as a result of having taken maternity leave. 

In May 2019, the government introduced the Pregnancy and Maternity (Redundancy Protection) Bill, but it failed to complete its passage through Parliament.  After Boris Johnson won the general election, he said that his government would re-introduce this legislation via a new Employment Bill, but nothing happened.

In October 2022, the government (by that time, headed up by Liz Truss) said that it would back the new Private Members’ Bill and it is progressing through Parliament. 

How will the Bill protect new parents?

Under current rules, before making an employee on maternity leave, shared parental leave or adoption leave redundant, colleges are obliged to offer them a suitable alternative vacancy where one exists in priority to anyone else who is provisionally selected for redundancy.

The new Bill will extend protection so that it applies to pregnant women 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 government believes this will ‘shield new parents and expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives’. 

However, not everyone agrees. The pressure group Maternity Action, argue that the existing protection is little more than a ‘mirage’ and that employers will be able to ‘ignore or act in deliberate breach of the law, safe in the knowledge that, having just given birth or been away from the workplace for up to a year, a woman is most unlikely to bring a prohibitively expensive Employment Tribunal claim – the only means of challenging an unfair redundancy’. It has called for fundamental reform – specifically, the introduction of a legal ban on making a pregnant woman or new mother redundant, other than in very limited and clearly specified circumstances, such as closure of all or part of a workplace. 

In 2019, and again in 2020, Maria Miller MP introduced a Private Member’s Bill which would have offered this level of protection. Both failed because of lack of government support.  

How long will this protection last?

The Bill provides a framework, which gives the government the power to introduce regulations which will set out the detail. The press release, issued recently by the government, made it clear that protection will start from the point at which the employee tells their employer that they are pregnant (we don’t yet know whether they will need to provide a MAT1 form first) and 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 from the end of her maternity leave. 

Similar provisions will apply to people who are adopting a child or taking shared parental leave.

Does this mean that colleges won’t be able to make pregnant woman redundant?

No. The protection will work in the same way as it currently does for women on maternity leave. 

Redundancy is a potentially fair reason for dismissing an employee.  However, in a redundancy situation, you are also required to show that you followed a fair procedure before making any employee redundant.  This will normally entail deciding who is in the pool and adopting a fair selection procedure. You will need to pool all relevant employees including pregnant women. However, if a pregnant woman is provisionally selected for redundancy, she will have the right to be offered any suitable alternative vacancy that exists in your organisation. This means that she takes priority over every other candidate who is not on maternity or other relevant leave. 

To decide if a job is suitable and appropriate the current law says it must be no worse than the woman’s previous job with regard to location, terms, conditions and status.  We expect the new regulations to mirror this.  

Difficulties can arise 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 at the same time (something that might happen more often once protection is extended over a longer period). 

When will this come into force?

Not yet. The Bill is still being considered by the House of Commons and will have to go before the Lords too. If it becomes law, it will not change anything until the government introduces new regulations which will set out the detail. 

It’s possible that a Sunak led government will take a different view and withdraw the government’s support for the Bill. Assuming that doesn’t happen, our best guess is that this will come into force sometime next year.

By Helen Dyke, Senior Associate in Irwin Mitchell’s Employment Team