26 Jan 2017

Following the government's response today to the Women and Equalities Committee's August report on workplace pregnancy discrimination, see below commentary from Michelle Chance, employment law expert at law firm Bond Dickinson.

"A complete redundancy ban affecting new and expectant mothers would not work in practice, particularly where employers need to make strategic decisions to close down or invest less heavily in certain complete business units or divisions, and women (including pregnant employees and new mothers) happen to be in that business division and therefore affected together with all other employees.  However a redundancy ban affecting pregnant and new mothers is not what is being suggested in practice. Rather the proposal is that employers should only be able to make pregnant employees or new mothers redundant lawfully in certain circumstances. Depending on what those circumstances are, that seems to be a fair and sensible balanced compromise position and commercially workable. What needs to be avoided is situations in which pregnant employees and new mothers (particularly those who have had a second child and are statistically more likely to request a form of flexible working) are earmarked for redundancy. We also need to prevent employers from targeting for headcount redundancies areas of the business where soft skills are utilised heavily and are therefore made up of a predominantly female population, such as HR, marketing, PR and communications.

"It is morally wrong and reprehensible in this day and age that women are still being discriminated against in this way because of their biological make up. If we are to encourage more working fathers to be hands on and involved in all stages of their children's upbringing, including the early years, then surely this should be addressed as a parental and not just a maternal issue. Fathers on shared parental leave and those who request flexible working due to childcare responsibilities must equally be protected, if they are earmarked for redundancy in a similar way to pregnant employees and new mothers.

"It is all well and good for the Government to say that pregnant women and women on maternity leave trump all other candidates for suitable alternative employment and have the right to return to the same job or a suitable alternative at the end of their maternity leave, but the reality in a redundancy situation where a woman has been earmarked for redundancy because of her childcare responsibilities, is that suitable alternative employment is never offered to her because she will be told that none exists and her role no longer exists.

"There needs to be a balance between employers being able to run their businesses commercially and profitably and making difficult decisions that affect all employees in a particular division or business unit, and the need to protect vulnerable pregnant women and new mothers from being earmarked for termination, and redundancy being the respectable smokescreen that is erected to eradicate childbearing women from the workplace, because they will be deemed as less ambitious or committed on their return to work, particularly if they need to work flexibly due to childcare commitments.

"In many cases, a number of roles are combined into one, however very often it is only the woman whose role is put at risk of redundancy, not the other males whose roles are also allegedly being restructured. Some unscrupulous employers bank on the fact that a pregnant employee or new mother in such circumstances will not have the time, energy or funds to bring a claim in such circumstances. The Government needs to enable vulnerable women and indeed parents in these circumstances to be able to access justice. Having to pay Employment Tribunal fees at a time when many mothers are only receiving statutory maternity pay or even where their pay is enhanced, it is very often less than their full rate of pay, and the short three month time limit in which such claims need to be brought, when a tiny baby is dependent on them for all their basic needs, must be properly addressed and resolved swiftly by the Government, as these are real barriers to justice being accessed."