UK: Extending Redundancy Protection For New Parents (UK)

Last Updated: 1 February 2019
Article by David Whincup

The UK government last week issued a consultation on "extending redundancy protection for women and new parents".

The proposals would mean that women who have recently returned to work after a period of maternity leave would have the same protection as women on maternity leave in a redundancy situation. The government's provisional view is that six months would be an appropriate period of "return to work" protection. This is perhaps based on one of the recommendations in the 2017 Maternity Action report we commented upon.

As the law currently stands, a woman whose job becomes redundant during her maternity leave period is entitled to be offered (as opposed to merely having the opportunity to apply for) a suitable available vacancy where one is available with the employer or an associated employer. If an employer fails to comply with this obligation, any dismissal will be automatically unfair and probably, though not necessarily, discriminatory. This obligation currently only arises in connection with women actually on maternity leave: if the woman has returned to work or has not yet gone on leave then her employer is not under this strict obligation to offer her a suitable available vacancy in priority to others. It still has to take reasonable steps to find her alternative employment, as would be the case with other potentially redundant employees. Similar protection applies to parents on adoption leave or shared parental leave.

The government is also seeking views on whether parents returning to work from adoption, shared parental and unpaid parental leave should be granted similar additional protection in a redundancy situation. Based on the existing situation in relation to leave and pay, it seems likely that consistency of treatment across the family-friendly regime would be maintained.

The government has launched this consultation in response to concerns that too many women are encountering discrimination after having children and are "forced out of work" when they seek to return. Research commissioned by the Department for Business, Energy and Industrial Strategy in 2016 found that one in nine women (11%) said they had been fired or made redundant when they returned to work after having a child, or were treated so badly they felt forced to leave their job. The detail of that report puts that headline number into a little more context. In fact, only 2% (one in fifty) were actually dismissed and for the others the report was careful to state that it was based on mothers' "perceptions of experiences" which "do not necessarily fall under the legal definition of discrimination". In particular, the BEIS research numbers did not distinguish between those leaving through some unlawful failure by the employer and those who were simply unable, perhaps despite their employer's best efforts, to square their childcare responsibilities with the reasonable needs of the business. This is obviously an issue unrelated to possible redundancy and this proposed additional protection. A number of commentators have sensibly suggested that a better approach to improving retention rates immediately post maternity leave would have been for the government to look at the price of childcare and the rules relating to flexible working.

It is possible to conclude on that basis that there is not the strongest of objective evidence that this new measure (a) is needed or (b) will make any difference. However, if it is introduced then what does it mean?

  • By extension from the existing practice under Regulation 10 of the Maternity and Parental Leave Regulations 1999, it would not prevent you from making a returning mother redundant.
  • It would not require you to give her priority over others in the selection of who is put at risk or who is ultimately chosen to lose their job.
  • It would only apply where there is a vacancy at that time, so the employer's description of events will need to be carefully considered – reducing 5 jobs in her team to 2 is redundancy but no vacancy, while removing 5 roles and replacing them with 2 new ones does on its face create vacancies which the recent maternity leaver would have to be offered.
  • These new rules could also affect the timing of redundancies as employers will know that if they are effected within that 6 month period, vacancies elsewhere in the group will have to be offered to the woman if she can fill them adequately and even if she is far from the best candidate available, internally or externally.
  • The extended duty on the employer would last from when the new returner is put at risk to the expiry of any notice period given. It would not apply if she is not at risk before the vacancy is filled or if she has already been made redundant before it arises.
  • Note the reference above to the duty extending to associated employers – this will be a new burden to large corporate groups with diverse subsidiaries in the same geographical area who have not hitherto had much cause to talk to each other. Group job boards and properly-maintained Group vacancy lists will be at a premium.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions