The Government has launched a consultation on improving the legal protections for women who are pregnant or on maternity leave.
This follows research undertaken in 2016 by the Equality and Human Rights Commission which found that 11% of women reporting having been dismissed or forced out of the workplace.
The current legal position
It is unlawful, under the Equality Act 2010, to discriminate against an employee because of pregnancy and maternity. When considering these, the protected period is the start of the pregnancy until either, (a) she returns from maternity leave (if she is entitled to this) or (b) two weeks after the end of the pregnancy (if she is not entitled to maternity leave). Outside the protected period, employees are still protected from discrimination related to pregnancy and maternity, because such treatment is likely to amount to sex discrimination.
Employees on maternity leave also enjoy some additional protection from redundancy, in that employers have an obligation to offer them suitable alternative employment, where this exists. This means that they have priority over other employees who are also at risk of redundancy. This applies only once the employee is on maternity leave (that is, it does not apply when the employee is pregnant and working, or immediately following her return to work).
The proposed changes
The Government is proposing that the priority that employees receive whilst on maternity leave in relation to suitable alternative employment is extended so that it applies during pregnancy, whilst on maternity leave and for a period of six months after the employee’s return from maternity leave.
One suggestion that had previously been mooted was adopting the approach taken in Germany, where an employer is unable to dismiss a woman during pregnancy without first obtaining the consent of the relevant public authority. The Government has wholly rejected that approach, noting that it would be out of kilter with the rest of UK employment law.
Possible future changes - six month time limit for bringing pregnancy and maternity claims?
The Women and Equalities Select Committee had suggested that the current three month time limit for bringing a claim should be extended to six months for pregnancy and maternity discrimination claims. The Government has rejected this for the time being, on the basis that Employment Tribunals have the ability to extend time limits where it is “just and equitable” to do so. However, the Consultation Paper suggests that the Government will continue to explore extending time limits for discrimination, harassment and victimisation claims, including those related to pregnancy and maternity.
What should employers be doing now?
There are no immediate steps for employers to take in light of the consultation, however, some organisations may wish to consider submitting a response to the consultation. The deadline for doing so is 05 April 2019.
The suggestion that time limits may be extended in future may be of concern to employers, particularly given that the ACAS early conciliation effectively means that employees have longer than three months already to submit proper pleadings. However, the good news is that any changes are unlikely in the short term.
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