There has been a sizable amount of space afforded to pregnancy-related discrimination in the media this past year. In fact, that’s one of the reasons for this series of pregnancy-related blogs. As such, it is becoming increasingly difficult for employers to escape accusations of pregnancy-related discrimination when it arises. This being said, there are charitable organisations out there that believe that more needs to be done: one of these charities is Maternity Action.
During the past week, Maternity Action have released a report (named “Unfair Redundancies”) calling on the Government to strengthen anti-redundancy protection for pregnancy employees. The most eye-catching statistics quoted by the charity include that 1 in every twenty mothers are made redundant during their pregnancy, maternity leave or return to work and that 77% of pregnant women felt discriminated against during their period of pregnancy.
Before we continue, let’s just dial down into that first statistic for a moment.
Firstly, it isn’t alleged that all of those redundancies are unfair or discriminatory. Rather, that is a pure statistic. However, the obvious implication is that a sizable proportion of those redundancies are motivated by pregnancy-related reasons. Now, that’s not to say that, under current employment law principles, those redundancies are necessarily examples of Unfair Dismissal. In fact, the charity seems to suggest that part of the problem is that some of these discriminatory redundancies are viewed as legally ‘fair’ dismissals.
In fact, this is one of the reasons behind the Women and Equalities Select Committee’s continued lobbying for the UK Government to increase the anti-redundancy protection for pregnant workers during their pregnancy-related period (i.e. their pregnancy, maternity leave and return to work). The Committee recommend that the UK Government introduce legislation to enforce a German-style method of anti-redundancy protection. This would largely mean new legislation banning employers from making women redundant at any stage between notification of pregnancy and six months after their return to work.
Obviously, there would need to be some limited exceptions to this – exceptions for complete place of work closures and company liquidation for a start – however, all in all, it would prove near impossible for a company to remove pregnant worker from employment.
Uncontroversial? Well, as always, there are two sides to the story. Whilst it seems the public are likely to welcome the news, this may simply shift the likelihood of redundancy focus onto male colleagues and/or female colleagues unable to have children due to their health status and/or age. If the redundancy situations are genuine, other employees will be targeted who can’t physically have children which, in itself, poses some uncomfortable questions.
Additionally, the majority of employers are likely to point out that pregnant employees already have additional protection against redundancy by virtue of them being required to offer the first available suitable alternative role to any employees on maternity leave ahead of non-pregnant employees (a rare example of so-called ‘positive discrimination’). However, as is obvious, this protection only applies during maternity leave and, rather puzzlingly, not during the pregnancy itself.
It should be pointed out that the Government did commit to ‘reviewing’ the situation earlier this year. Unfortunately, ‘HMS Brexit’ has taken the wind out of the Government’s sails on this one and, at present, no real consultation has been actioned. For now, at least, the situation looks likely to remain the same.