Redundancy Protection: Women and New Parents

The detailed findings show a disturbing level of acceptance among employers and managers that discrimination against women on the basis of their decision to bear children or their caring responsibilities is acceptable. All the following views were endorsed by at least a third of the employers and managers interviewed for the research:

“During recruitment, it is reasonable to ask women if they have young children”,

and about their plans to have young children;

“During recruitment, women should have to disclose whether they are pregnant”;

“Women should work for an organisation for at least a year before deciding to have children”;

“Women who become pregnant and new mothers in work are generally less interested in career progression than other employees”.

Many of those interviewed claimed to have seen at least one pregnant woman “take advantage” of their pregnancy, and regarded pregnancy as putting an “unnecessary cost burden” on the workplace—quite shocking. Given that those attitudes and views are widely held among employers and managers, is it any wonder that pregnant women and new mothers are so widely discriminated against in the workplace?

I am sure the Minister is familiar with the proverb, “It takes a village to raise a child”. It is 25 years since Hillary Clinton highlighted that, in our modern and highly urbanised society, the underlying premise of that proverb is perhaps truer now than it has ever been. Of course, children are vital to the future of our society and our economy, with declining birth rates, increasing life spans and ever-more dispersed families. Perhaps, whatever we might think in our ever-more digital world, we are collectively becoming more dependent on community networks and wider society than ever before.

How can those interrelationships and that long-term intergenerational benefit work, though, if the first thing that happens to an expectant woman or a new mother is that she loses her job and her family’s ability to raise a child is compromised? However, unfortunately, as the research shows, far too often that is indeed what happens, so I hope it is accepted by the UK Government that no one should have to fear losing their job because they become pregnant. Surely that must be a given.

Between employers and Governments, effective arrangements should be in place to support women and their families through the potentially life-changing process of pregnancy and child rearing. However, under current arrangements, women only have enhanced protection from redundancy until they return from maternity leave, and the evidence is that this protection is not working. All the protection means is that a woman on maternity leave can be made redundant, but must be offered an alternative job above anyone else being made redundant if another job exists, which can prove a very big caveat.

The current law does not stop employers using pregnancy as an excuse for a piece of cost-cutting, as demonstrated by the case of Jessica—which is not her real name. Jessica, whose case was disclosed by the campaign group Pregnant Then Screwed, had a well-paid job, became pregnant, and was made redundant on the day she was due to return from maternity leave. The day before she was due back, which was during lockdown, she received a text telling her to not go into the office, but to be available for a video call with a senior manager. During that call, she was told that she was being made redundant. She had been back at work for all of 30 minutes. She is convinced that the firm simply wanted to cut its staff budget, and by going on maternity leave, she had unknowingly self-selected for redundancy. What a way to treat a member of staff, and what a welcome to the world for her child, into a family now burdened by unaffordable debt and forced to move out of their home, and with a mother whose mental health and career are in tatters.

As an employee of the company, Jessica might have had some chance of arguing a case for discrimination, although the costs and hurdles associated with attempting this would, and do, put most people off trying. On the other hand, Mandy, whose case was highlighted by the Taylor review, had no chance of doing so, because legal protections in the UK are so heavily and deliberately weighted against workers who are not direct employees. Mandy had worked for a bank on a zero-hours contract for several months. However, when she informed her employer that she was pregnant, her hours were reduced to zero; in effect, she was summarily dismissed with no recourse. Mandy is one of those pregnant women and new mothers who have borne the brunt of the increasing casualisation of the UK workforce. She found out that employment status, whether as a direct employee, self-employed, or as a limb (b) worker, is important, because it dictates entitlement to some key maternity and parental rights. Those in the growing number of insecure forms of employment can find their rights greatly diminished, reducing or eliminating their entitlements to maternity and parental pay and leave, health and safety protection, time off for antenatal appointments, and rights to return to work.

The “Insecure Labour” report produced by Maternity Action in November 2020 spells out some of the implications of casualised or insecure work on women workers, and pregnant women and new mothers in particular. Heather Wakefield, chair of Maternity Action, said that the report

“paints a shocking picture, which requires swift and radical action by Government, employers and trade unions to halt the damaging impact of casualisation on the working lives and wellbeing of pregnant women and new mothers.”

Cases such as Jessica’s and Mandy’s are not isolated incidents, certainly not during the pandemic. Last summer, Pregnant Then Screwed conducted research involving almost 20,000 pregnant women and mothers. It found that 10% of pregnant women said that they had been made redundant, or expected to be in the next six months. More than half said that their pregnancy was a factor. Some 11% of women on maternity leave said they had been made redundant, or expected to be in the next six months, and more than 60% said that their maternity leave was a factor. Almost 13% of women who had recently returned from maternity leave said that they had been made redundant, or expected to be in the next six months. Two thirds said that their maternity leave was a factor.

Further research that Pregnant Then Screwed conducted in March and April of this year suggests that the situation is worse this year than it was last year. Surveying 16,000 pregnant women and mothers, it found that 30% believed they had experienced discrimination from their employer during the pandemic. Clearly, if the protection is not working as it should, that is something that should have been addressed long before now. The SNP has been pressing the UK Government to act to protect pregnant women and new mothers facing discrimination and unfair treatment in the workplace, yet five years on from the EHRC research, the UK Government have so far failed to take the necessary steps to prevent redundancy discrimination. Surely the UK Government would agree with the need to protect pregnant women and new mothers.

In 2016, the Women and Equalities Committee recommended the UK Government implement within the next two years additional redundancy protection throughout pregnancy and maternity leave and for six months afterwards. In 2017, in their response to the Committee, the Government indicated that the current position was “clearly unacceptable.” Yet, here we are—four years on and no further forward. Had the UK Government implemented reform within the timeframe proposed by the Committee, many women would have been spared unfair redundancy and discrimination prior to and in the aftermath of the pandemic.

In the absence of action by Government, last year the right hon. Member for Basingstoke (Mrs Miller) introduced a ten-minute rule Bill on pregnancy and maternity redundancy protection, which is still awaiting Second Reading. The Bill seeks to

“prohibit redundancy during pregnancy and maternity leave and for six months after the end of pregnancy or leave, except in specified circumstances; and for connected purposes”.

The SNP wholeheartedly supports the Bill. It is extremely disappointing that the UK Government have yet to put their weight behind it.

Earlier this year, Jamie Hepburn MSP, the Minister for Business, Fair Work and Skills in the Scottish Government, wrote to the Minister responding today, outlining the Scottish Government’s support for a range of reforms to support women and families, including extending redundancy protections for women and new parents. The letter makes clear the Scottish Government’s support for the Bill. It has also been endorsed by Maternity Action, which said that the Government should strengthen redundancy protections by immediately adopting the Bill as its own and expedite it into law.

Commenting on the current law, Rosalind Bragg, director of Maternity Action, said:

“The current law on redundancy and maternity is complex, poorly understood and difficult to enforce.”

She highlighted that women often find the person covering their maternity leave is kept on, while their role is made redundant, and described that as

“a classic case of unfair and unlawful redundancy”.

Maternity Action recognises that it may be impossible for pregnant women and new mothers to devote their energy and finances to pursuing employment tribunal claims, which is why it is important that the timescale for pursuing such claims is extended from three to six months.

Shamefully, due to the UK Government’s inaction on redundancy protection, women across the UK are facing a new wave of pregnancy discrimination and unfair redundancies as the furlough scheme winds down and employees try to return to their jobs. After years of the Government failing to deliver on their commitment to act, urgent legislation is now needed.

In April 2019, the UK Government accepted the need to extend redundancy protection for six months once the new mother has returned to work, afford the same protection to those taking adoption leave and extend redundancy protection for those returning from shared parental leave. It is now time for the UK Government to act and I look forward to seeing those proposals reflected in the Queen’s Speech on 11 May.

If the Minister is able, I am also keen to hear his thoughts and the Government’s plans to protect women and new parents in their employment in the context of the pandemic and the future of work. As we move out of the immediate crisis of the pandemic, some things are very clear. For instance, unfortunately, jobs and job security will be an issue and concern for many people. We cannot simply throw women and new parents on a jobs bonfire post pandemic. Employment protections, equality provisions and flexibility are all areas where, although in-roads have been made, they are not nearly enough. We must accept the need to go further.

Rather than aiming to go back to the old normal, the Government must consider fair work, the future of work, and what jobs and work will and should look like. All of us lose out when we restrict the talent pool by putting unnecessary barriers to work in front of women and new parents. An unthinking return to the same old, same old would be a real lost opportunity to do things differently and to take a lead on the employment policies and practices and structures that will make work possible for women, new parents and those with caring and other responsibilities. Things like the right to request flexible working from the start of a job would make a vast difference to many employees, and would support employers, too, in adopting the working practices and environments that will allow the talents of all employees to properly shine through.

I look forward to the Minister’s response on these and the other points that I have made today.

The ten-minute rule Bill from my right hon. Friend the Member for Basingstoke (Mrs Miller) was raised. I am aware of calls for us to do things differently. Indeed, I met my right hon. Friend and other colleagues to discuss her proposal, which follows aspects of the German approach, and my predecessors held similar meetings. It is not the objective that we disagree on but the means of achieving it, and even then we share a lot of common ground. The key difference is that the Government’s preferred approach retains and extends the current position of giving the pregnant woman or new parent preferential treatment so that, in effect, they are first in the queue for suitable remaining jobs in a redundancy situation. Others suggest removing the current framework and replacing it with a comprehensive redundancy band with some very limited exceptions so that, in effect, that a pregnant woman or new mother could only be made redundant when a business is closing down. The Government have not yet been convinced by that argument.

At its simplest, taking that approach could require employers to continue to employ people even when there is no work for them to do if the business continued to exist. That burden would fall particularly heavily on small businesses. That is why we continue to believe that extending the existing framework remains the right approach. We believe that we are more likely to promote the culture change we seek by placing a slightly more flexible requirement on employers for an extended period. The six-month extension of additional redundancy protection into a return-to-work period will provide a period of up to 27 months when pregnant women and new mothers will be first in the queue for suitable remaining jobs in a redundancy situation. I believe that will represent a considerable and significant step forward in redundancy protection for pregnant women and new mothers.

I have heard the arguments that there ought to be a role for state enforcement in redundancies involving a pregnant woman or new mother. We need to tread carefully when looking at state roles within those sort of areas. All redundancies should be fair, and it would not be rational to treat one group within the workplace any differently from another by giving them a different arbiter in the redundancy process. I appreciate the pressure and strain that the employment tribunal system is under and will be under owing to the covid pandemic, but none the less it has considerable strengths. For instance, it allows for careful consideration of employment disputes, which are often complex or may not be clear-cut, by those with appropriate expertise. Case law from employment tribunals allows our laws to evolve and develop to reflect changing working practices.

However, I am only too aware that improving redundancy protection only goes so far. The majority of employers report that it is in their interest to support pregnant women and those on maternity leave, with the main reasons being to increase staff retention and to create better morale among employees, but we know that many employers feel that women should declare up front during recruitment whether they are pregnant. EHRC and Department for Business, Innovation and Skills research back in 2016 put a figure of 70% on this. Further, the same research found that a quarter of employers felt that it was reasonable during recruitment to ask women about their plans to have children, so clearly there is some way to go.

Tackling the challenge of pregnancy and maternity discrimination will require action on many fronts. That is why we committed to set up an employer and family representative group, which I want to make recommendations on what improvements can be made to the information available to employers and families on pregnancy and maternity discrimination. Rather than focusing on the end of the process, redundancy, I want the group to look at earlier stages of the employment lifecycle, because we need to shift the whole focus of the debate on pregnancy and maternity discrimination so that employers get it right in the first place, rather than focusing only on what happens when things go wrong. I want the group to develop an action plan on the steps organisations can take to make it easier for pregnant women and new mothers to stay in work and for them to progress throughout their careers.

We are having final discussions with business and family representative groups. Indeed, only the week before last, Maternity Action wrote to the Secretary of State for Business, Energy and Industrial Strategy on behalf of a number of trade unions and family groups to set out views on areas that might usefully be covered. This discussion is therefore very much a live one, and I hope to be able to announce the group’s membership and first meeting date soon.

I congratulate once again the hon. Member for East Renfrewshire on securing this important debate and for keeping this issue in the public eye. I started off by talking about how most employers realise the value of investing in their workforce and supporting them throughout their career. There are clearly actions that we need to take and issues we must address, as she and the hon. Member for Strangford (Jim Shannon) outlined eloquently. I look forward to working with the taskforce, seeing what it has to offer, listening to further debates both in this place and in responding to it and tackling many of these issues, as parliamentary time allows.