01 August 2019 #Employment
It is estimated that up to 54,000 women a year lose their jobs as a result of pregnancy or maternity discrimination with 37% of women feeling isolated to the point of resignation following a return from maternity leave.
The law already specifically protects employees from unfavourable treatment because they are pregnant or on maternity leave, at any time from the beginning of the pregnancy to their return to work after maternity leave.
It is also a legal requirement to give women who are on maternity leave who are at risk of redundancy priority over other employees in the same situation. Under Regulation 10(3) Maternity and Parental Leave etc Regulations 1999, if a redundancy situation arises during an employee's maternity leave and "it is not practicable by reason of redundancy" for the employer to continue to employ her under her existing contract, employers have an obligation to offer a suitable alternative vacancy where one is available. For example, if a restructure means that there will be a reduction from 8 substantially similar roles to 4 suitable alternative roles, any of the 8 affected employees who are on maternity leave have to be offered one of the new roles rather than being placed in a redundancy selection pool.
This redundancy protection currently only applies while an employee is on maternity leave. The government has now committed to extending this period so that it starts when the employee informs the employer, whether orally or in writing, that she is pregnant and continues for six months after the end of maternity leave.
The government will extend the same additional six months of redundancy protection for those returning to work after adoption leave. It also intends to extend some redundancy protection for those returning to work after shared parental leave but the details have not been confirmed. This may be more limited protection and/or for a shorter period of time.
A task force of employer and family representative groups will also be established by the government. It will be important for employers to contribute to this because this task force will develop an action plan on what steps government and other organisations should take.
These developments can be expected to improve the overall rates of pregnant women and new mothers staying in work. It will be crucial for HR professionals to ensure they are fully aware of these new requirements in order to avoid discrimination claims. No date has yet been announced for these changes to come into force but it is sensible to expect that this will happen in early 2020.
However, these changes are unlikely to mark a sea change in retention of women in the workforce.
One obvious change which is not included in these reforms relates to paternity pay and leave. While accurate figures are hard to come by, it is likely that the full 2 weeks of statutory paternity leave is only taken by around half of those entitled to it. The most obvious exhalation for this is that statutory paternity pay is set at £148.68 (or 90% of the employee's average weekly earnings if this figure is less than the statutory rate).
There are of course perfectly good reasons - the protection of the health of women who have just given birth - why the first two weeks of maternity leave are compulsory while paternity leave is optional. It is also valid that it is not discriminatory not to extend the legal rights and protections which apply to pregnant women and those on, or returning from, maternity leave to those taking paternity leave: paternity leave is a shorter period of time out of the workplace.
In addition, it is not realistic or appropriate to think that regulation of the employment relationship is the way to remove gender biased assumptions about parenting. However, it is not helpful if the law reinforces these assumptions: in particular, the assumption often made by employers of new parents as to which parent will be the primary caregiver.
With that in mind, one change the government could make would be to increase statutory paternity pay to 90% of average weekly earnings. It is worth remembering that small employers are entitled to recover 100% of statutory maternity or paternity pay from HMRC, and large employers are to recover 92%.
If this had the effect of increasing the numbers of men taking two weeks’ paternity leave, it should also result in fewer women being held back in their careers as a result of becoming parents.