New maternity leave protections: addressing gaps in the legal system

In theory English employment law provides women on maternity leave with very strong protection. Once a woman notifies her employer that she is pregnant, the “protected period” applies giving her enhanced protection from redundancy. This remains in effect until her maternity leave ends. Should a redundancy situation arise during the protected period, then the mother must be offered a suitable alternative role - notably, in preference to any other comparable employee. Such preferential treatment is one of the rare examples in English law where positive discrimination is not only permitted, but mandatory.

During her protected period, the only legally fair way to make a woman redundant is either to demonstrate that her role is unique and that no suitable alternative position exists, or to dismiss the entire team of which she is a member. During the Covid pandemic, for example, office managers and management teams were dismissed because their employers simply ceased to operate through an office.

Mothers can also benefit from additional protection afforded by the Equality Act 2010, which makes it unlawful for an employer to treat them less favourably, either because of their pregnancy or maternity leave. For example, it would be discriminatory for a woman to be demoted or passed over for promotion because she is on maternity leave. Equally, dismissing a woman because of pregnancy or maternity is also discriminatory, although proving it can be difficult.

A persistent issue

Notwithstanding this legal protection, most experienced employment lawyers acknowledge that discrimination relating to pregnancy and maternity remains commonplace. Manifestly, very few employers would ever seek to justify treating someone less favourably because of their race, religion or other protected characteristics. But some of them still react adversely to women who opt for lengthy periods of maternity leave.

A 2018 government report about pregnancy and maternity leave canvassed opinion from several thousand British employers and mothers. The results confirmed the anecdotal evidence of employment lawyers: 11% of mothers had either been dismissed due to maternity leave or treated so badly that they chose to move elsewhere. Harassment or negative comments related to pregnancy or flexible working were experienced by one in five respondents.

Notably, the UK’s overall gender pay gap is less than 5% for employees under 40, and in some younger age groups, women are paid more than men. Conversely, the gender pay gap exceeds 10% for employees aged 40 and above. While a myriad of factors explains this differential, dismissal and discrimination related to maternity leave must play a part.

Gaps under current protections

The position many mothers find themselves in should not come as a huge surprise. No rational employer would argue that their business would suffer by hiring ethnic minority employees, and very few would seek to justify discrimination on the basis of sex. But maternity leave – often genuinely expensive and disruptive – is different.

There is a real financial cost in hiring maternity cover or keeping a role open for a sustained period, particularly for companies that pay enhanced maternity leave. Sharp practice can never be justified, but it does exist and arguably requires even more enhanced protections for employees.

The financial compensation that follows successful claims for unfair dismissal relates primarily to loss of earnings. In essence, if it takes an employee nine months to secure a new job, a tribunal will award nine months’ pay as compensation.

However, many women will only receive statutory maternity pay (currently £172.48 per week) for much of their maternity leave. Because compensation is based on earnings, if a woman is dismissed before her maternity leave starts but finds another job before it ends (which is likely), then her employer will not incur a serious financial penalty (it would have paid maternity pay either way). This is problematic.

Should a dismissal be found to have been motivated by pregnancy (which can be hard to prove), the mother may also receive additional damages for injury to her feelings - typically, ranging between £10,000 and £30,000. For higher earners, such an award might not be deemed sufficient to justify the potential risk to their wellbeing and reputation that may arise from a public hearing. By contrast, a low-paid employee may often struggle to afford the necessary legal representation to pursue an effective discrimination claim.

Arguably the biggest problem is that the protected period ceases once maternity leave ends. Timing is critical. Any decision made during the protected period, but only actioned afterwards, will be treated as having been done in the protected period. In other words, an employer cannot decide to make a mother redundant a week before she returns to work from maternity leave, but then wait until after her return before implementing the earlier decision.

Regrettably, companies quite often announce a restructure shortly after the end of an employee’s maternity leave. In our experience, it has been manifestly apparent that some employers have made this decision during a mother’s maternity leave, but kept no contemporary record of those decisions. This is problematic.

Companies sometimes deploy these tactics because they end up preferring a maternity cover to the employee who is on maternity. Alternatively, in redistributing work, companies sometimes find that they no longer need the role which the mother occupied. In such circumstances, it is not untypical for women to return to work only to find that there is not much for them to do and that a redundancy consultation starts soon afterwards. All these situations could be discriminatory. However, this is difficult to prove.

Changes to take effect

If it is accepted that a woman’s career should not be hindered by maternity leave then it is clear that the current law does not provide adequate protection. In recognition of this, the government is reforming the protection period. The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (MASPA Regulations) are due to come into force next month.

The most important change will be a significant extension of the protected period. Instead of ending on the day a mother returns to work, it will now last for 18 months from the anticipated week of childbirth (or the date the child is born if the employer is informed). Similar protections will apply for adoption leave: an 18-month protected period after the child’s placement. Birth partners will also be entitled to the same protected period if they take more than six weeks of shared parental leave.

These changes are meaningful. Women will benefit from enhanced protections for at least six months after their return to work, which should help to ensure that they do not face imminent redundancy after returning.

Knowing that women will have these enhanced rights will force employers to think twice about keeping any maternity cover instead of the returning woman. Furthermore, if a woman’s work has been redistributed among colleagues, it will be one of them who faces redundancy if any restructure takes place after the woman’s return.

Hopefully, having at least six months back at work will enable the mother to become fully re-established before redundancy can be considered. But the new regulations leave a great unknown: whether the protected period can be transferred. Women often change roles during maternity leave for completely legitimate reasons. It is unclear whether a woman who changes employer 12 months after giving birth would qualify for enhanced redundancy protection with her new employer. In practice, this could be disproportionate, and potentially counterproductive since it would deter some employers from hiring new mothers.

These changes will not, however, provide much comfort to the large number of mothers who are dismissed before, or shortly after, they start maternity leave. They will continue to face difficulties: navigating England’s loss-based compensation system and managing without legal aid in trying to bring discrimination claims. A further barrier is that parties in the employment tribunal are usually liable for their own costs, making even clear-cut cases financially unviable.

More change is anticipated which could help new mothers: the right to request a flexible working arrangement from day one of new employment. If an employer unreasonably refuses such a request, any dismissal will probably be considered unfair and discriminatory. Nevertheless, dependent on the nature of the job, employers will retain significant discretion that will allow them to reject flexible working requests and so this is less significant than the new redundancy protections.

Susan and Andrew's article was published in Relocate Global, 26 March 2024.