The level of protection afforded to pregnant women facing redundancy is under review. The government is backing a Private Members Bill sponsored by Labour MP Dan Jarvis which is likely to become law at some point this year - it has cross party support. Its purpose is to extend Regulation 10 of the Maternity and Paternity Leave Regulations 1999 (“MAPL 1999”) to give employees who have just returned to work after parental leave 6 additional months of redundancy protection. But, taking the law as it is now, how does Regulation 10 work in practice? What is required of employers?
Regulation 10 is a rare example of permitted positive discrimination in UK employment law in that the woman on maternity leave can jump the queue when it comes to being offered alternative vacancies that may exist. What is required of employers exactly? It’s a question we are often asked so we have added it to our FAQ series of programmes. On the line from Glasgow with the answer, Sue Gilchrist:
Sue Gilchrist: “I think the issue that we typically see is that employers aren't aware of the positive obligation on them to offer a suitable available vacancy to a woman on maternity leave, or to another family leaver who is protected in this way. That obligation to offer really is that, it's not a passive duty to let the employee come forward and say, oh, well, I would like this job from a list of vacancies, it is for the employer to go out and consider what vacancies there are and whether they're suitable and available for the woman to do and I think that's where we see the employer sometimes fall down in that they don't comply with that positive duty. Where we see, I think, good practice is when employers have a ‘focus team’ looking at available vacancies and how they can slot people into them, whether or not they are benefiting from this additional protection. For any employee being made redundant there's an obligation to consider suitable alternative employment and that is a slightly different test from what we're talking about in relation to the maternity protection which is ‘suitable available vacancies’. So, in both categories, it's best practice to have a team in place to look for redeployment and work with employees and that can certainly help mitigate the risk and also help to catch this special protected category of employees who are within their maternity leave period, or coming back from another type of family leave. The other point to consider is the obligation to offer a suitable available vacancy doesn't mean that a woman has a right to any job she might fancy, to any vacancy, it has to be suitable for her to do as well as available. So, she has to have the requisite skills and abilities, perhaps with a bit of training up, to perform that role, but that should be something that's carefully considered in the context of what the role is, could she do it, etcetera, before making any decision that it isn't a suitable available vacancy.”
This programme has been added to our FAQs series of programmes on redundancy issues, both individual redundancies and collective. The programmes are badged as ‘Analysis’ and you can find them using the search engine on the Out-Law website.