Out of sight out of mind – pregnancy, maternity and redundancy during Covid-19

Posted on 17th September 2020

Out of sight, out of mind is a phrase we hear a lot from women who are returning to work after a period of maternity leave. There is often a lot of confusion and misinformation when it comes to this area, especially about employment rights linked to redundancy. This is a topic which has sadly become more relevant in light of Covid-19. Whilst these are unprecedented times, employers should not use the current crisis as an excuse to treat pregnant women and new mums unfavourably, and yet there have been many reports of pregnant women and mothers being excluded from meaningful consultation, consideration for alternative roles and singled out for redundancy.

Discrimination linked to both pregnancy and maternity leave is an issue that many women continue to face, despite there being statutory protections in place. A 2016 government report found that ‘three in four mothers (77%) said they had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave’ and around ‘one in nine mothers (11%) reported they felt forced to leave their job’. With this in mind, the aim of this article is to provide some simple and clear information about employment rights in this area.

Can I be made redundant whilst pregnant or on maternity leave?

Yes. Whilst you can’t be made redundant because you are pregnant or on maternity leave, you can still be made redundant if there is a genuine redundancy situation.

There are special protections in place in order to protect women on maternity leave, because if you are about to or have recently had a baby this will generally impede your ability to search for new employment. Regulation 10 of the Maternity and Parental Leave Regulations 1999 says that if you are facing redundancy during your maternity leave, if there is a suitable alternative job you should be offered it, you essentially get a right of first refusal.

If you think that you are being made redundant because you are pregnant or on maternity leave then you may have a claim for discrimination, unfair dismissal and/or automatic unfair dismissal and you should seek advice without delay.

What special protections do I have on returning to work from maternity leave?

Prior to the Covid-19 outbreak employers already had a duty to carry out a workplace risk assessment for pregnant women and new mums. When the government published social distancing guidance it identified pregnant women as “clinically vulnerable”, and as such any risk assessment conducted now should take into account social distancing measures. If your employer is unable to alter your working conditions or provide an alternative role such that the risk of contracting Covid-19 is minimised then they should suspend you on full pay.

It has recently been reported that many pregnant women were put on sick pay during lock down, which may result in them losing out on maternity pay. The reason being, is that to be eligible for statutory maternity pay women need to have earned a minimum of £120 a week on average in the 8 weeks prior and statutory sick pay (SSP) is £95.85 per week. Labour’s shadow employment rights minister has called on the government to take action to prevent this injustice. The government have already amended the regulations to ensure that those who were furloughed do not lose out on maternity pay if their earnings fall below £120 a week and so it is possible that further changes will be made to protect those that were wrongly put on SSP.

What should I do if I have been selected for redundancy because of pregnancy or whilst on maternity leave?

Finding out that you are of risk at redundancy is undoubtedly stressful, especially if you are pregnant or you have recently had a baby. Many women find themselves in this situation – you are not alone. You have rights and options, and depending on your particular circumstances, as a first step you may wish to raise a grievance and/or seek advice from an employment law specialist.

It is unlikely that you will be told that you are being made redundant because you are pregnant, but rather that there are comments, emails and/or skewed selection criteria/scoring (for example) which suggest that this has influenced the decision-making. It may also be the case that you have been effectively excluded from redundancy consultation (collective and/or individual) and as such you are at a massive disadvantage when it comes to inputting on proposed restructures and organisational changes, suggesting alternatives/challenging selection criteria and scoring and applying for alternative roles.

We understand that if you are pregnant or you have just had a baby doing this may be low down on a long list of priorities, but it is vital to take action without delay in order to protect your position. The reason for this is that redundancies are often pushed through on the fastest possible timing so if you want to prevent action being taken you have to act quickly.

Time limit

Also, time limits for bringing claims in the employment tribunal are notoriously short, generally speaking you only have 3 months less one day from the act you are complaining of to issue a claim, subject to prior compulsory notification of claims to ACAS and the ACAS early conciliation process.

Are there any changes afoot?

Whilst there has been some development in this area, the rate at which change is happening is slow. In July 2019 the government announced that legal protections against redundancy where there are suitable alternative roles would be extended to protect new mothers for an additional 6 months after they returned to work. However, at the time of writing there is no clear indication as to when these changes will come into force.

In addition, on 8 July 2020 the Pregnancy and Maternity (Redundancy Protection) Bill 2019-21 was introduced to Parliament. If successful it would ‘prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or leave, except in specified circumstances’. Only time will tell, and in the meantime the more we can do to dispel the myths around this complex and poorly understood area the better.

We understand that pregnant women and new mothers are under an enormous amount of pressure, not only due to health concerns around Covid-19 but also the resulting economic downturn. If you want more information about your rights in respect of pregnancy you’re your maternity leave please take a look at our Frequently Asked Questions or call 0808 231 6369 to speak to one of our Employment Law specialists to find out how we can help.

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