Possibility Of Job Cuts Amid A Maternity Break

Embarking on maternity leave is typically an exhilarating and anxiety-inducing period as a parent. Soon, you will greet your treasured baby, and things will appear slightly altered.

While your employment might be the last thing on your mind right now, regrettably, a common challenge confronted by individuals during maternity leave is the potential risk of being made redundant either while on leave or upon their re-entry into the workforce.

However, starting from early April 2024, legal adjustments were made to provide extra protection to employees in this particular scenario. Continue reading for further details.

Exploring the historical context of redundancy for mothers

It’s understandable that you may not have previously contemplated the likelihood of facing redundancy while on maternity leave. Nevertheless, it can be beneficial to grasp more about the reality that some mothers encounter.

In 2017, Maternity Action, the UK’s predominant charity dedicated to eradicating inequality and enhancing the welfare of expectant women, their partners, and children, published a report scrutinizing unjust redundancies during pregnancy, maternity leave, and the phase of returning to work.

In this study, Maternity Action relayed findings from the Equality and Human Rights Commission report from 2016, indicating that “77% of expectant or new mothers encountered discrimination or adverse incidents during pregnancy, maternity, and upon resuming work.” If extrapolated to the broader population, this could equate to as many as 390,000 mothers annually.

Moreover, in additional research from EHRC in May 2018, “approximately one out of nine mothers (11%) reported having been either dismissed, made compulsorily redundant—unlike their counterparts in the workplace—or treated so poorly that they felt compelled to resign from their positions.”

While a majority of these statistics date back a few years, they offer insight into the experiences of many and spotlight the necessity for enhanced safeguards for employed parents.

Is it possible to face redundancy during maternity leave?

We engaged in a discussion with Tabytha Cunningham, a partner in the employment division at Paris Smith, to uncover more about the recent legislation and all the essential information related to it.

What protective measures have been implemented for employees in redundancy circumstances?

The fresh regulations introduced fall under a statute known as the Protection from Redundancy (Pregnancy and Family Leave) Act. Essentially, this legislation aims to prolong the existing redundancy safeguards currently applicable to employees during their maternity, adoption, or shared parental leave, thereby extending their duration.

What do the existing regulations entail?

Employees on maternity, adoption, or shared parental leave already receive enhanced protection in case they encounter a redundancy scenario while still on leave.

Although there remains a possibility of being at risk of redundancy, a special safeguard guarantees that if an employee faces redundancy selection, individuals on maternity or analogous leave must be given priority for any suitable alternative positions over other staff members.

For instance, if five employees get selected for redundancy post an evaluation process, and the employer has a single vacancy for a similar role at the same tier in another department, the employee on maternity leave should legally receive the vacancy before others.

In case an employer mishandles this process, the employee holds the right to potentially file a claim for automatic unfair dismissal.

What are the modifications?

The alteration pertains to the duration of this safeguard. Formerly, this special protection solely extended while the employee was on maternity, adoption, or shared parental leave – concluding upon their return to work. Additionally, it did not apply if your position faced jeopardy during pregnancy but prior to commencing maternity leave.

With the implementation of the new regulations, this protection now encompasses:

• The moment an employee discloses their pregnancy to the employer
• Throughouttheir phase of absence (as formerly) and
• For 18 months after the child’s birth or adoption date

For most workers, if they opt to commence their maternity leave near their anticipated due date and take a complete year off, this signifies the safeguard will endure for approximately six months post their reentry into the workforce.

There are specific regulations regarding when you secure this safeguard if you undergo a spell of shared parental leave (the type of leave both parents can divide between them if they decide to conclude the mother’s maternity leave or adoption leave prematurely and switch to this leave), which essentially assert that if you take a continuous leave of six weeks or more, you will also enjoy this protection for 18 months after the birth/adoption.

When does the alteration become active?

The updated rules have been in effect since 6 April 2024. The implementation in practice hinges on the nature of the protection.

• If an employee is relying on the new protection that envelopes pregnancy, they will be covered if they report their pregnancy to the employer on or after 6 April 2024.
• If an employee is banking on the fresh protection that applies following their return from leave, the modern regulations will be pertinent to adoption or maternity leave concluding on or after 6 April 2024 or any period of six weeks continuous shared parental leave commencing on or after 6 April 2024.

Can employees still encounter redundancy while they are pregnant or during or after maternity or akin leave?

Although the protection has heightened, regrettably, the modern regulations don’t block employers from terminating an employee while they are pregnant or during or post-maternity leave or another leave period.

The unique safeguard in place doesn’t avert an employer from jeopardizing an employee in this scenario by redundancy. It also doesn’t deter them from electing that employee for redundancy, provided a fair selection process is followed.

It solely focuses on minimizing redundancies by ensuring those employees have precedence over any identified vacancies by the employer.

What repercussions will this alteration bring for employees?

The effect of this in practice will significantly vary based on the employer’s size. In a substantial enterprise with numerous openings in various departments and teams at a similar echelon, this safeguard could be exceedingly beneficial – enabling the employee to have primary access to these vacancies and likely retain employment. In a smaller business with scant vacancies, where those available may not be a good fit, this safeguard, unfortunately, holds minimal influence.

The impact also fluctuates based on the redundancy type. The regulations are intricate, but in a restructuring scenario where the employer is downsizing roles and altering the remaining positions’ nature, this can prove very advantageous. It might occur that all positions are being eliminated, and the new roles that persist will legally have to be considered as suitable alternative vacancies. An employee encompassed by this safeguard in such a circumstance will, hence, receive primary priority for those lingering roles.

What alternative protection do employees have?

It’s crucial to note that aside from these rules, employers must also be cautious not to display bias toward employees because of pregnancy, on leave, or recently back from leave.

For instance, singling out an employee for redundancy due to pregnancy would constitute direct discrimination and be illegal.

Similarly, disadvantaging an employee in a redundancy context because of maternity leave, for example, if that influenced their sales metrics considered in the evaluation process, could be deemed indirect discrimination, which is also unlawful.

Therefore, employers must meticulously contemplate their redundancy protocols to ensure employees are neither directly nor indirectly prejudiced throughout.

In situations where an employee is on leave during a consultation, employers should also arrange reasonable measures to ensure their effective participation in the process, such as scheduling meetings at suitable times or providing comprehensive information packs.

What actions should I take if I sense I am experiencing prejudiced redundancy?

If you suspect being unfairly at risk of redundancy or facing inequity in the selection process due to your pregnancy or recent maternity leave, it’s crucial to communicate this to your employer. Ensure you raise these concerns during the consultation. If you believe you should have priority for a certain position, provide reasons for your eligibility and express your interest in being considered for the role.

In case your employer neglects your concerns in the consultation and terminates your employment on grounds of redundancy, you have the right to appeal. Utilize your appeal rights and present your grievances in writing.

If your concerns remain unaddressed by your employer, you may contemplate initiating legal action for unfair dismissal and discrimination. You must file a claim for unfair dismissal within three months of termination and for discrimination within the same period after experiencing discriminatory actions; therefore, seek prompt guidance to ensure timely action.