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In 2015, research revealed that 77% of 3,254 mothers surveyed had a negative or discriminatory experience during pregnancy or maternity leave, or when returning to work from maternity leave. These experiences included feeling forced to leave their job by being made compulsorily redundant, being dismissed, or treated so poorly that they felt they had no chance but to leave voluntarily.

The problem is exacerbated when a parent is on maternity, paternity, adoption, or shared parental leave when a business goes through a redundancy process. Employees in this situation often feel more vulnerable and there is a risk they could suffer discrimination at this stage.

Current rights

Currently, the maximum maternity, adoption or shared parental leave is twelve months and special protection is in place for redundancy situations.

These employees must be offered suitable alternative employment where an alternative role is available whilst they are on leave.

However, if they are not offered suitable alternative employment where a role exists and they are subsequently dismissed for redundancy, then they may have an automatic unfair dismissal claim.

A long fight for protections

Employees have waited a long time for additional protections to be offered to them while they’re on parental leave and several Acts and Bills have come close, but until this week (week commencing 24th July 2023), no stand-alone legislation has been in effect to support these employees.

  • The Equality Act 2010 does make it unlawful for a person to discriminate against a woman on the grounds of pregnancy or maternity
  • Following a consultation in 2019, the Government announced it would extend redundancy protections provided for by regulations
  • In 2019, The Queen’s Speech mentioned a Government commitment to introduce an Employment Bill that would extend redundancy protections. However, to date, this Bill has not been introduced

On 3rd March 2023, the House of Lords considered the Protection from Redundancy (Pregnancy and Family Leave) Bill at second reading. This Bill is a private member’s Bill first introduced in the House of Commons on 15 June 2022 by Labour MP for Barnsley Central, Dan Jarvis, and Conservative member, Baroness Bertin.

The private member’s Bill would allow the secretary of state to make regulations about protection from redundancy during and after pregnancy, and six months after returning from maternity, adoption, or shared parental leave.

After no amendments at the second reading, the Bill progressed to a third reading on 3rd February 2023, to which it received full support from both the Government and MPs from various parties.

Potential changes

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 has the potential to significantly enhance the protection of employees who are pregnant, on maternity leave, adoption leave and shared parental leave.

On the 24th May 2023, the Act received Royal Assent and will come into force on 24th July 2023 however provisions are subject to additional regulations which have not yet been issued, it appears likely that the following changes will apply:

  • Pregnant employees at risk of redundancy are to be prioritised for suitable alternative employment from the point they notify their employer of pregnancy – however, one new provision also provides for the protected period to begin after the end of the pregnancy. This is designed to cover miscarriages that have taken place before an employer was made aware of the pregnancy
  • Priority for suitable alternative employment for employees at risk of redundancy who are returning from maternity leave, adoption leave or shared parental leave for six months after their return to work (subject to additional regulations to be published at a future date)
  • The right of these employees to claim automatic unfair dismissal if they are not offered suitable alternative roles that exist, and they are dismissed for redundancy

However, it’s uncertain when the additional regulations will be published and currently the full extent of the rights and exemptions in this Act are unclear. For example, regulations clarifying the practical protections regarding shared parental leave, which allows employees to take shared parental leave in separate blocks, will be needed.

The regulations are expected to come into force no earlier than April 2024, but no specific date of publication of the additional regulations has been provided by the Government.

Fundamentally, this Act potentially allows pregnant employees, or those on parental leave, the right to be offered suitable alternative employment in redundancy situations for up to two years. This includes six months of pregnancy, plus twelve months maternity leave, and six months from when they return to work.

For further information on employment matters, especially on maternity leave, Arc Legal has used its expert lawyers to create an Employment Guide which can be used as a reference tool.

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