New maternity leave protections — addressing a weakness in the legal system

On the face of it, a woman on maternity leave has some of the strongest protections afforded to anyone under English employment law. From the moment the employer becomes aware of a pregnancy, to the day that the mother returns from maternity leave, that woman is in a "protected period".

During the protected period, a woman has enhanced protections from redundancy. If a redundancy situation arises, then that woman must be offered a suitable alternative role in preference to anyone else.

This represents one of the few examples of positive discrimination not only permitted but required under English law.

Imagine a team of five solicitors. Due to a downturn in business the team needs to be reduced to four. Even if the woman on maternity leave was the least qualified and least skilled in every measurable way (objective or subjective) she would still need to be given one of the four remaining roles and one of the 'better' employees would be dismissed. If this did not happen, then that mother’s dismissal would be automatically unfair.

In practice, the only way to fairly make a woman redundant during her protected period is to show that her role is either entirely unique and that there are no suitable alternative roles for her to carry out, or, to dismiss an entire team. For example, during the pandemic there were several cases where office managers or office management teams were dismissed because the company in question was no longer operating an office.

In addition to this enhanced protection from redundancy, mothers also have protection under the Equality Act 2010. Under the Equality Act, it is unlawful for an employer to treat a mother less favourably because of her pregnancy or maternity leave. By way of example, if a woman was demoted or passed over for promotion as a result of beginning maternity leave, then that would be discrimination. Dismissing a woman because she was on maternity leave would also be discriminatory (but proving this can be difficult).  

An ongoing problem

Despite this legal protection, many employment lawyers (including ourselves) will tell you that pregnancy and maternity discrimination is more prevalent than almost any other kind. It is almost unheard of to hear an employer attempt to justify treating someone less favourably because of their race, religion or almost any other protected characteristic, however, some employers still react very badly to women wanting to take long periods of maternity leave.

In 2018, the UK government commissioned a report about pregnancy and maternity leave after interviewing 3,034 employers and 3,254 mothers.

The results of this report back up the anecdotal experience of many employment lawyers. Of the mothers surveyed, 11% (one in 9) reported that they were either dismissed due to maternity leave or treated so badly that they felt they had to move to a new company. Furthermore, one in five faced harassment or negative comments related to pregnancy or flexible working.

It is also interesting to note that the UK-wide gender pay gap is very narrow (less than 5%) for employees aged 39 and under. At some younger ages the gender pay gap is negative (i.e., women are better paid than their male counterparts). However, the gender pay gap widens significantly (to more than 10%) after employees turn 40 years old. The UK gender pay gap is an average and many factors contribute towards the delta, however, it isn’t an overreach to suggest that dismissal and discrimination following maternity leave are contributory factors.

The weakness in the legal system

In some ways this discrimination is not surprising. No rational employer would suggest that a company would be worse off by hiring an employee from a minority ethnic background. Only a chauvinist would seriously try to justify discrimination on the basis of sex. However, maternity leave is often genuinely expensive and disruptive to companies.

Hiring maternity cover, keeping a role open for a year while also (in some cases) paying enhanced maternity leave comes with a real cost. While this does not justify sharp practice by employers, it perhaps explains the need for enhanced protection.

One issue is the fact that unfair dismissal claims are based on financial loss (which in practice means loss of earnings). In simple terms, if it takes an employee six months to find new work, compensation awarded by a tribunal will be six months’ pay.

For much of her maternity leave, a woman will only receive statutory maternity pay (currently £172.48 per week) and any compensation is based on actual earnings.

If a woman is dismissed before her maternity leave begins but finds another job before her maternity leave was due to end (which is very likely), then the employer is not going to face a serious financial penalty. This is a problem.

If a dismissal is found to be motivated by pregnancy (which is hard to prove), then the mother may also receive an award for injury to feelings and could expect to claim around £10,000 to £30,000. However, a low-earning employee will struggle to afford the legal representation that is often required to pursue an effective discrimination claim. For high earners, the potential injury to feelings award might not be considered enough to be worth risking their wellbeing and reputation by going to a public hearing.

Perhaps the greatest problem is the fact that the protected period ends as soon as maternity leave ends. If a decision is made during the protected period but is actioned afterwards then the protected period applies to that action. For example, an employer cannot decide to make a mother redundant one week before she returns from maternity leave but then wait until the mother returns to implement the earlier decision.

Sadly, it is not uncommon for a company to announce a restructure shortly after an employee’s maternity leave ends. Anecdotally, we have acted for women in cases where it is quite clear that the company wanted to dismiss a woman during her maternity leave but kept no record of this.

Also, companies sometimes prefer a maternity cover to the employee on maternity. Alternatively, employers might redistribute work and find that they no longer need the role that the mother occupied. In these situations, it is not uncommon for women to return to work, find that there is little for them to do and then face a redundancy consultation a few weeks later. Either would be discriminatory, but this is difficult to prove.

The proposed changes

If you agree that a woman’s career should not be hindered by maternity leave, then it is hard to argue that the current law offers sufficient protection. It is therefore positive that the government has sought to reform the protection given to mothers.

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (MASPA Regulations) are due to come into force in April 2024. Under the MASPA Regulations, the most important change will be to significantly extend the protected period.

Instead of the protected period ending the day that woman returns to work, the protected period will now last for 18 months from the expected week of childbirth (or the date that the child is born if the employer is informed). The same protections will apply for adoption leave, with the protected period applying for 18 months after the child’s placement.

Birth partners will also benefit from the same protected period if more than six weeks of shared parental leave is taken.

This is a meaningful change in the law. In practice, women will have enhanced protections for at least six months after they return to the office. This should help to ensure that women do not face redundancy immediately after returning.

Knowing that women will have enhanced rights for at least six months will cause employers to think twice about whether to simply keep on any maternity cover. Furthermore, if a woman’s work has been redistributed among colleagues, then it will be one of those colleagues facing redundancy if there is a restructure during the extended protected period.

It is hoped (not unreasonably) that by having at least six months back at work, women will be able to get re-established in their companies before redundancy can be considered.

A great unknown from this reform is whether the protected period can be transferred. It is not uncommon for women to move roles during maternity leave for completely legitimate reasons. Under this change, we do not know whether a woman who moves to a new employer 12 months after giving birth would get enhanced redundancy protection with that new employer. We believe that this would be disproportionate. It could also be counterproductive as it could put employers off hiring new mothers. It will be interesting to see what is decided.

What this change will not do is give much reassurance to the large number of mothers dismissed before or shortly after they begin maternity leave. These women will still face difficulties arising from the nature of England’s loss-based compensation system and the fact that no legal aid is given to women bringing discrimination claims. Another barrier is the fact that parties in the employment tribunal are generally liable for their own costs (unlike the civil courts where the losing party pays most of the other side’s legal fees). This can make even clear-cut cases economically unviable.

Another change on the horizon that could help new mothers is the right to request flexible working arrangements from day one of employment. If an employer unreasonably refuses to consider the possibility of flexible working, then it is likely that any dismissal will be unfair and discriminatory. However, in practice, employers have a lot of discretion to reject flexible working requests.

Susan and Andrew's article was published in FTAdviser, 23 April 2024.