The government has issued a consultation paper asking for views on improving protection for women against unfair dismissal after having a baby.

The consultation proposes that a specific legal protection against redundancy for pregnant women and new mothers on maternity leave is extended so that begins from when the employer is told in writing of the pregnancy, and it continues for up to six months after they return to work. It is also seeking views on affording the same protection to parents returning from adoption leave or shared parental leave.

The consultation also:

  • set out the current legal protections for pregnant women and new mothers under the Equality Act 2010 and the Employment Rights Act 1996
  • sets out the steps that the government is taking to increase employees’ awareness of those rights and employers’ awareness of their obligations, and invites comments on how they might be improved to tackle pregnancy and maternity discrimination more effectively
  • considers the existing approach to the enforcement of employment and equalities legislation in the context of recommendations from the Women and Equalities Select Committee (WESC) and the Taylor Review
  • discusses the three-month time limit within which a claim of discrimination can ordinarily be brought to a tribunal.

The proposals were prompted by research commissioned by the Department for Business, Energy and Industrial Strategy, which found that one in nine women had been fired or made redundant when they returned to work after having a child or were treated so badly they felt forced out of their job. The same research estimated that 54,000 women a year may lose their jobs due to pregnancy or maternity.

Other research commissioned in collaboration with the Equality and Human Rights Commission found that 11 per cent of women reported they were either dismissed; made compulsorily redundant where others in their workplace were not; or treated so poorly they felt they had to leave their job. 20 per cent of mothers reported other financial loss which included failing to gain a promotion, salary reduction, a lower pay rise or bonus, not receiving non-salary benefits and/or demotion.

Iain Birrell of Thompsons Solicitors commented:

"This is the latest round of the government proposing workers’ rights to allay fears of a post-Brexit bonfire of employment rights. It has puffed out a lot of smoke about it, but is there much fire? The specific measure under consideration is the one where the new mother goes to the top of the list for any vacancy that would avoid her redundancy. It is a sensible safeguard, and the proposed extensions are welcome, but the protection’s existing key flaws remain unaddressed: it doesn’t stop her redundancy dismissal per se; it doesn’t help her much if she is the only one at risk of redundancy; and it doesn’t help where a non-redundancy dismissal is engineered to be rid of her.

The proposal came from the WESC report but their associated recommendation to double the tribunal deadline for a claim about any breach of this right is rejected. The government’s ‘not-so-pro-worker’ preference is to leave the deadline as it is and (in paragraph 47) literally to ‘hope’ that any women who miss that deadline will nevertheless not be deterred but will seek to rely on the Employment Tribunal’s limited discretion to allow late claims. Overall it leaves us with a proposal which might improve some workers’ rights eventually, but only in a way that lacks ambition, trades certainty for hope, and ignores key expert recommendations about it.

"The proposal is welcome, but let’s not break out the bunting just yet."

The consultation document can be read on the government website.

To respond to the consultation (which closes on 5 April) online, go to the Department for Business, Energy and Industrial Strategy's website