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Jo Mackie examines the pregnancy and maternity discrimination bill in People Management

March 2023

Director and Head of Employment Jo Mackie explores how proposed legislation will extend redundancy protection for expectant mothers and new parents, in People Management.

Jo’s article was published in People Management, 28 March 2023, and can be found here.

If a new private member’s bill becomes law, pregnant women will receive greater protections from redundancy under new legislation backed by the government.

Under current rules, before offering redundancy to an employee on maternity leave (or on shared parental or adoption leave), employers have an obligation to offer them a suitable alternative vacancy where one exists. The Protection from Redundancy (Pregnancy and Family Leave) Bill will enable this redundancy protection to be extended, so that it applies to pregnant women as well as new parents returning to work from a relevant form of leave. This includes maternity, shared parental and adoption leave.

The government consulted on its proposals and found evidence of new parents facing prejudice in the workplace. Worse still, the consultation found that an estimated 54,000 women a year feel they have had to leave their jobs because of discrimination related to maternity or pregnancy.

The bill has garnered influential support. The group Pregnant then Screwed, a charity that campaigns for better protection for new parents and pregnant women, welcomes the bill, but the group’s founder, Joeli Brearley, says it has limitations – including the fact that only 1 per cent of women who experience pregnancy or maternity discrimination raise a tribunal claim because of barriers, including the three-month time limit in the employment tribunal to make a claim. “Extending protections sounds great in theory, but women are forced to use a dysfunctional tribunal system to access them, and so they give up,” she says.

“If the government was serious about giving women greater access to justice, they would have increased the time limit to raise a tribunal claim and invested in the tribunal system so it can better provide adequate and timely justice for claimants.”

Unison’s general secretary, Christina McAnea, says the bill recognises that the period surrounding maternity leave is fraught with risk for women and their families at a time when they most need job security. She says: “Maternity discrimination cases make up much of the union’s legal case load, so this new law can’t come soon enough. This much-needed bill has Unison’s wholehearted support.”

And it is not only individuals who will allegedly benefit from the new bill. The government says the new measures will also be beneficial to businesses, helping to improve relations with employees and reducing a source of conflict that can be costly and time consuming.

Unison has been joined by the GMB Union in corroborating that the bulk of their legal claims is on maternity discrimination, so this seems to be a necessary addition to the legal framework that builds the implied duty of trust and confidence between employer and employee, which employment lawyers see breached and the basis of claims in the courts.

Alongside these reforms, the government is also working with the Pregnancy and Maternity Discrimination Advisory Board to update guidance so that this type of discrimination in the workplace, which has been and continues to be a problem for new parents and pregnant women, is stamped out. The trouble with guidance is that it’s only that – it has no legal teeth. The government would be wise to add a legal implication for businesses that fail to follow guidance, similar to those in employment law that fail to follow the Acas code and face a penalty percentage uplift when they lose their case at an employment tribunal.