UK: Maternity redundancy protection proposals and health and safety guidance

  • The Women and Equalities Select Committee has published its response to the government’s consultation on extending redundancy protection for women and new parents, supporting the proposed extension to cover the period from notification of pregnancy to six months after return from maternity leave, and agreeing its extension to other types of longer parental leave. It also recommended that large companies should be required to report on retention rates for women 12 months after returning from maternity leave and 12 months after lodging an application for flexible working, and that consultation on extending the time limit for pregnancy/maternity discrimination claims from 3 to 6 months be carried out swiftly.
  • Maria Miller MP, the Chair of the Women and Equalities Committee, subsequently introduced a 10-minute Rule Bill in the House of Commons, said to have cross-party support, which goes further than the government proposals. The Bill would prohibit employers from making employees redundant during pregnancy, maternity leave and for six months after the end of maternity leave, except where the employer ceases to carry on business where the pregnant woman or new mother is employed.
  • The TUC and Maternity Action have published new guidance for health and safety reps on “Pregnancy, breastfeeding and health and safety“. This emphasises the need for risk assessment prior to pregnancy notification, whenever the employer employs women of childbearing age; this general assessment should then be revisited on notification of pregnancy to review specific risks regularly as the pregnancy progresses. The guidance urges reps to challenge employers who claim that there are risks that cannot be removed once they are told that a woman is pregnant and instead say they have to move or suspend the worker, stating that there are very few hazards which cannot be controlled to ensure that all pregnant women are safe, not just those who have notified their employer.
Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: communicating with employees on maternity leave

Employers should ensure they agree in advance how and how often they will communicate with an employee while on maternity leave (or indeed other periods of longer family-related leave), particularly if the employee will be at risk of redundancy during that period. In South West Yorkshire Partnership NHS Foundation Trust v Jackson, the EAT ruled that sending an email about redeployment opportunities to the employee’s work email address which she was unable to access, meaning she only became aware several days later, was unfavourable treatment on grounds of maternity leave for which she was awarded £5,000 compensation. It might also be discrimination on grounds of maternity, but that would depend on the reason for using the work email address and would not be so if the reason was simply administrative error.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: proposals to extend redundancy protection for employees who are pregnant or returning from maternity leave

The Government has published a consultation until 5 April 2019 on proposals to extend the current period of protection for women on maternity leave during which they are given priority over any suitable alternative vacancies should their role be made redundant. (An employer’s failure to offer any such available vacancies renders the consequent redundancy dismissal automatically unfair.)

The main proposal is to extend this right of priority over vacancies to apply from the point at which the employee notifies her employer of her pregnancy in writing, through to six months after a new mother returns to work. The consultation seeks views on how this should work where an employee takes some other form of leave immediately after her maternity leave (such as annual leave or a career break) and also whether the protection should be extended to those returning from adoption leave, shared parental leave and longer periods of parental leave.

Hong Kong: Proposed changes to discrimination laws

On 30 November 2018, legislation was gazetted which proposes various amendments to the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The proposed amendments reflect eight of the recommendations from the Equal Opportunities Commission Report on the Discrimination Law Review. Key changes include extending protections against discrimination on the ground of breastfeeding and extending protections against disability and racial harassment by customers.

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UK: Diversity Developments – presentation of pay gap data, proposals on parental leave and dress code guidance

  • The Government Equalities Office has published the findings of a commissioned study (here) concluding that the clearest and most accessible way of presenting gender pay gap figures is to display them visually as coins or as the amount which women earn for every £1 men earn (rather than percentages). The latter approach has now been added to the data on the government’s pay gap website, which also now includes bar charts to show the gender split by pay quartile and displays an employer’s data all on one page. The study also found that benchmarking improved comprehension, so may lead to pressure on the government to add visual benchmarking to the published data in future.

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UK: April 2018 changes to statutory benefits, tribunal compensation, minimum wage

From 6 April 2018, the cap on the unfair dismissal compensatory award increases from £80,541 to £83,682 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) increases from £489 to £508. This gives a maximum unfair dismissal award of £98,922. Note that since 29 July 2013 there has been an additional cap on the compensatory award of 12 months’ pay.

The bands for injury to feelings awards have also been increased for claims presented on or after 6 April 2018;  the lowest band starts at £900, the middle band at £8,600, and the highest band starts at £25,700 with a cap of £42,900 (save in exceptional cases).

From 6 April 2018 the weekly rate of statutory sick pay increases to £92.05 per week (from £89.35) and from 1 April 2018 the weekly flat rate of statutory maternity, paternity, adoption and shared parental pay increases to £145.18 per week (from £140.98).

The national minimum wage rates increases from 1 April 2018. Workers of 25 years and older will be entitled to be paid a minimum national living wage of £7.83 per hour (increased from £7.50).

UK: pregnancy discrimination update

  • The ECJ has confirmed that there is no EU law requirement to give priority to a pregnant worker in the context of collective redundancies.  The prohibition on dismissing workers whilst pregnant or on maternity leave does not apply where there are “exceptional cases” unconnected with their condition, and the Court confirmed that this exception can include collective redundancy.  The Advocate General’s opinion in this case had attracted some attention as it took the view that pregnant workers’ protection from dismissal should apply from the moment they become pregnant, even before they have notified their employer of the pregnancy (whereas, under UK law, protection is thought to start from the point at which the employer is aware).  The ECJ did not need to rule on this point as it decided that it was not relevant on the facts. (Porras Guisado v Bankia SA)  Employers will be reassured that UK law is largely compliant with EU law in this area. UK law does not prohibit dismissal in such circumstances, but does go further than required by the Pregnancy Worker Directive in giving priority over suitable vacancies to those on maternity leave who are at risk of redundancy.  It is also worth noting the ECJ’s view that written reasons of dismissal in these circumstances should include the reasons for the redundancy and the relevant objective selection criteria – UK law simply requires ‘written reasons’.
  • A claim for automatic unfair dismissal by reason of pregnancy and pregnancy discrimination will not succeed if the employer can show that it was not aware of the pregnancy at the time of the decision to dismiss. The EAT in Really Easy Car Credit Ltd v Thompson has confirmed that an employer is not obliged to revisit a decision to dismiss an employee where it discovers that the employee is pregnant after making, but before communicating, the decision.  This is so even if the decision was based on conduct which may well have been pregnancy-related.  The case highlights the importance of contemporaneous notes showing when the decision was taken, particularly if there is going to be a delay between taking and communicating the dismissal.