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TUC response to the consultation on extending redundancy protection for women and new parents

Report type
Consultation response
Issue date

Introduction

The TUC is the voice of Britain at work. We represent more than 5.5 million working people in 48 unions across the economy. We campaign for more and better jobs and a better working life for everyone, and we support trade unions to grow and thrive.

Unions play a vital role in ensuring that rights under the Equality Act are respected and upheld by way of collective bargaining, raising awareness of rights amongst employers and employees, assisting in resolution of disputes, providing support to members in pursuing claims to employment tribunals, as well as adopting strategic litigation to clarify legal issues and establish norms to be followed in the workplace.

The TUC has a long history of campaigning to address discrimination on the grounds of pregnancy and maternity and has consistently highlighted and campaigned against discrimination against women workers in the British labour market, the workplace and in wider society.

While we welcome the proposal to extend redundancy protection for pregnant women and new parents once they have returned to work this measure falls short of the change required to address the true extent of pregnancy and maternity discrimination.

1. The scale of pregnancy and maternity discrimination

Before addressing the specific issues raised in the consultation, it is important to properly understand the scale of the issue that the proposals seek to address.

There have been two major pieces of national level research which have examined the extent and causes of pregnancy and maternity discrimination in the UK. The first, Greater Expectations, was published in 2005 by the Equal Opportunities Commission (EOC). [1] The EOC reported that almost half of the 440,000 pregnant women in work in Britain at that time experienced some form of disadvantage at work, simply for being pregnancy or taking maternity leave. It also reported that 30,000 women were forced out of their jobs. This figure included women who opted for voluntary redundancy. A decade later, as a result of widespread concerns that the situation was worsening, the Equality and Human Rights Commission and BEIS conducted in-depth research into employer and employee experiences. This research provided a robust evidence base on the current scale and nature of discrimination and disadvantage experienced by pregnant women and new mothers and on employer attitudes and approaches to pregnancy and maternity. The new research showed that the position of pregnant women and new mothers had worsened considerably over the previous decade.

The EHRC/BEIS research [2] found that:

  • Over three quarters of women (77%) reported experiencing discrimination or disadvantage as a result of pregnancy, maternity leave, and/or on return from maternity leave. This is equivalent to 390,000 mothers a year.
  • Around 54,000 women every year (11%) were forced to leave their job. This included those being dismissed (1%) made compulsorily redundant, where others in their workplace were not (1%) or feeling treated so poorly they felt they had to leave their job (9%).
  • One in five mothers (20%) said they experienced verbal harassment around pregnancy or flexible working from their employer/colleagues.
  • Over half of women (51%) reported experiencing discrimination and disadvantage as a direct result of having their request for flexible working agreed.
  • One in 25 mothers (4%) left their jobs because of risks not being tackled, rising to one in ten younger workers (under 25).
  • One in ten (10%) mothers were discouraged from attending antenatal appointments.

2. Positive impact of unions

The research also found that across a range of experiences the presence of a recognised union in the workplace improved women’s experiences. Mothers who worked for an employer that did not recognise a trade union were more likely to report being forced to leave their job and having negative experiences related to flexible working requests. [3]

The presence of a recognised union was particularly important in terms of redundancy. Large employers (13%) were most likely to have made pregnant women redundant, rising to 16% among large employers with no trade union. Similarly, large employers were also most likely to make women returning from maternity leave redundant (12%, again rising to 15% among large employers without a trade union). Mothers who were not a trade union member during pregnancy, maternity leave or return after maternity leave were more likely to be made redundant (5% compared to 3% of mothers who were members of a trade union).[4]

One of the most effective measures in preventing pregnancy and maternity discrimination is membership of a union and the presence of a recognised union in a workplace. In order to best promote equality on this issue, the evidence clearly points to measures to promote union recognition and membership, alongside legislative reform as being necessary to address discrimination and disadvantage.

3. Need for wider solutions

The EHRC/BEIS’s shocking findings, now published three years ago, led to a call from the Women and Equalities Select Committee for “urgent action and leadership” from government. The Committee also commented that “the approach that the Government is taking forward lacks urgency and bite” [5].

As a member of the Alliance for Maternity Rights, the TUC supported the Alliances’ action plan[6] which set out a detailed framework for action to eliminate pregnancy and maternity discrimination. As well as action on extending redundancy protections, the government needs to revisit the recommendations made in this plan. Action is needed across a number of areas in order to address the main underlying issues which affect the majority of pregnant women and new parents at work.

In particular, government should address the following areas:

  • Trade union access to workplaces: one of the most effective measures in preventing pregnancy and maternity discrimination is membership of a union and the presence of a recognised union in the workplace. We need new legislation to give unions the right to access workplaces during working hours to tell people about the benefits of union membership. Unions play a key role in informing workers about their rights, enforcing the rights that they do have and negotiating better protections for workers.
  • Rights for all: All pregnant women and working parents – including zero-hours contracts workers, agency workers and those in casual work – should have access to the same rights, from day one in their jobs. This includes all family friendly rights, which are often only available to “employees”.
  • Flexible working All staff should have the right to flexible working patterns from day one, unless the employer can prove there is a business reason why flexible working cannot be accommodated. It should be the default position that all staff can benefit from positive flexible working practices. This would benefit many employees including parents managing their childcare. Employers should have to justify where it is not possible to advertise a role flexibly. This would be a big step towards changing workplace culture and creating a more supportive climate for pregnant women and new parents to work flexibly.
  • Information and awareness: There should be a government campaign targeted at pregnant women and new parents to raise awareness of their employment rights, including the rights which will help them manage their childcare needs and their right to join a trade union. This should be supported by the reintroduction of printed information on employment rights made available to every pregnant woman at their first booking in appointment.
  • Increased transparency: Building on the transparency provisions in the Gender Pay Gap Regulations, which have helped to refocus employers’ attention and efforts on addressing the barriers experienced by women at work, government should require employers to publish their maternity retention rates. We recommend that employers should be required to publish the proportion of pregnant women and new mothers who are still working for them one year after returning from maternity leave. This would act as an incentive to employers to promote positive flexible working cultures which can retain and develop these staff. It would also shine a spotlight on those employers with poor practice.
  • Access to justice: Although over three quarters of pregnant women and new mothers reported experiencing discrimination or disadvantage, fewer than one per cent lodged an Employment Tribunal claim. There are a range of barriers that make it more difficult for women to access justice. These include the current three-month time limit for claims relating to discrimination, harassment and victimisation. Government should extend Employment Tribunal time limits to at least six months. It is also vital that the employment tribunal system is properly resourced. The current system is under real strain following an upsurge in claims. There are lengthening delays between lodging and hearing a claim.

4. Alignment of protections against redundancy following return to work with those in place during maternity leave

We strongly agree with the proposal that protections against redundancy following return to work should be aligned with those already in place during maternity leave. We are not aware of additional costs for either employees or employers of the additional proposed protections.

The existing protections set out in the Equality Act 2010 and Regulation 10 of the Maternity and Parental Leave Regulations 1999 reflect the fact that pregnant women and women on maternity leave are at risk of experiencing discrimination. They also recognise that women who have recently given birth or who have been out of the workplace for a period of time could be significantly disadvantaged in having to compete for roles during redundancy situations.

The EHRC/BEIS research and evidence from a range of organisations including Maternity Action[7] have provided clear evidence of instances where women who have returned from maternity leave have been specifically targeted for redundancy.

5. Benefits of extension

The EHRC conducted additional research [8] drawing on the findings of the pregnancy and maternity discrimination research to calculate the financial costs to women and employers of these experiences. The calculations were limited to the measurable financial costs that may be experienced by a woman who has been forced to leave a job or faced other financial loss during the 12 months following the point in time when the event occurred. This did not include the longer-term costs of discrimination or the potential impact of the negative experience on a woman’s mental and physical health.

The research revealed that British businesses are losing nearly £280 million each year as a result of pregnancy and maternity discrimination. These costs were largely due to recruitment and training costs, and lost productivity. In addition, the calculations did not include the significant wider costs incurred from reputational damage, loss of valuable staff, employment tribunals and longer-term productivity impacts.

The cost to women who were forced out of their jobs by pregnancy and maternity discrimination was calculated to be around £113 million a year. The research also found discrimination still had a financial impact on those who remained in their roles, with women experiencing a financial loss of up to £34 million in total over the year following experience of pregnancy and maternity discrimination. This included failing to gain a promotion, having their salary reduced, being demoted and receiving a lower pay rise/bonus than they would otherwise have secured.

There are therefore clear financial benefits for both women and employers to steps which would reduce the likelihood of pregnancy and maternity discrimination occurring.

Steps which help reduce or eliminate the pregnancy and maternity discrimination can also be useful in helping to close the gender pay gap. The causes of the gender pay gap are complex and include factors such as occupational segregation and women being more likely to work part time than men. However, analysis has shown that a over a third of the Gender Pay Gap is caused by ‘unexplained’ factors which include discrimination [9]. Action to extend protection around redundancy could therefore have a positive impact in efforts to close the gender pay gap.

6. Period of “return to work” for redundancy protection purposes

We agree that six months would be an adequate period of “return to work” for redundancy protection purposes. Although we are aware of continuing discrimination against women with caring responsibilities in terms of discriminatory selection for redundancy, a period of 6 months would allow parents who had taken time out of the workplace to care for children to re-establish themselves in the workplace.

7. Definition of the start of pregnancy for redundancy protection purposes

We strongly disagree with the proposal that definition of the start of pregnancy for redundancy protection purposes should be the point at which a woman informs her employer that she is pregnant in writing. We believe that a different reference point should be used. There are a wide range of reasons why women might not want to inform their employer of their pregnancy. These include health related issues as well as the significant levels of discrimination and disadvantage experienced by pregnant women in the workplace. BEIS/EHRC research revealed that more than one in ten women (11 per cent) felt that they were less valued at work as a result of informing their employer of their pregnancy and seven percent felt under pressure to leave their jobs; a figure which doubled for younger mothers (15 per cent) , single mothers (14 per cent) and women earning less than £10,000 a year (13 per cent) [10] . This can lead to an understandable reluctance among many women to inform their employer at an early point of their pregnancy. Although it is often advisable for a woman to inform her employer about her pregnancy because she might need to take time off for ante natal care or need protection from health and safety risks, women should not feel forced to inform their employer about their pregnancy before they feel ready to do so.

Therefore, in order to ensure that women are effectively protected we believe the definition of the start of pregnancy for redundancy protection purposes should be consistent the Equality Act 2010 s.18 (6), where the protected period begins at the start of a woman’s pregnancy. If instances occur where a woman is selected for redundancy and she has not informed her employer about her pregnancy, the redundancy decision should be reviewed to ensure the it has not been taken as a result of pregnancy.

8. Extending protection to other groups

We strongly agree that adoption leave, shared parental leave and longer periods of parental leave are the most direct equivalents to return to work from statutory maternity leave and that the same additional redundancy protection should be extended to men and women in these groups. Workers in each of these groups may potentially face disadvantage in redundancy situations when returning to work from a period engaged in caring for children.

Shared parental leave is flexible in nature and each parent can take up to three blocks of leave, (or more if their employer allows), interspersed with periods of work. We therefore feel that any additional redundancy protection should take account of this, with the six-month period of protection extending from the end of the final block of leave.

There are strong grounds for extending regulation ten protection to all types of statutory family leave listed above (shared parental leave, adoption leave, and longer periods of parental leave). We consider that this should apply to parents who take four weeks or more of parental leave. All parents irrespective of their sex may face the same disadvantages in a redundancy situation when returning to work after a period of time spent looking after their child/children.

We do not believe that statutory paternity leave should be covered by the extended Regulation 10 protections. As it is currently only two weeks in duration, it is unlikely that those taking this type of leave will require the additional protection from redundancy afforded. However, if at a time in the future, Government extends the period of statutory paternity leave, we recommend that this is revisited.

9. Effectiveness of current information provision for pregnant women and new mothers on their employment rights

We do not feel that the steps outlined in the consultation document have been effective in informing pregnant women and new mothers of their employment rights. In some instances it is difficult to come to a clear conclusion as we do not have enough information to fully ascertain the effectiveness of the steps.

The EHRC/BEIS research revealed that although three in four mothers (77%) reported a negative or possibly discriminatory experience only just over a quarter (28%) of these raised issues informally, with just three per cent going through formal grievance procedures and fewer than one per cent lodging a tribunal claim.

One of the issues that women identified as a barrier to raising issues was a lack of information about rights. Only a minority of women sought advice from sources including their union, ACAS or a Citizens Advice Bureau. However, where mothers told their employers they had sought advice from an external organisation, this often triggered action from the employer to resolve the issue.

Timely access to up to date and accurate information on employment rights is vital for pregnant women and new mothers to

  • understand their rights;
  • know when they have been breached;
  • identify sources of support in seeking redress.

Start4Life/MATB1 Certificate

We welcome the inclusion of information on Start4Life campaign emails and on the MATB1 certificate. However, we are not in a position to comment on the adequacy of the information provided as this was not included in the consultation document. We also do not have information on the proportion of pregnant women who access the Start4Life information, but it is unlikely that it’s reach is universal.

It is important to note that the MATB1 Certificate is given to women by their doctor or midwife at around 20 weeks. The EHRC/BEIS research shows that more women reported experiencing discrimination or disadvantage in their pregnancy than during maternity leave or on return to work. Younger women and those on lower incomes were more likely to experience discrimination during their pregnancy.

At this stage women reported:

  • feeling under pressure to leave their jobs after they’d told their employer about their pregnancy;
  • being dismissed or unfairly targeted for redundancy;
  • being blocked from accessing antenatal appointments;
  • exposed to health and safety risks;
  • being treated poorly as a result of pregnancy related conditions such as morning sickness.

Many of these issues occurred in the early stages of pregnancy.

In total over three quarters of women experienced pregnancy and maternity related discrimination or disadvantage. It is therefore vital that all women are provided with accurate and comprehensive employment rights information at the earliest possible point in their pregnancy.

Every pregnant woman used to be provided with detailed information at their first booking in appointment in the form of publications which contained important information on health, employment rights and benefits. This is no longer the case.

In Scotland, the publication ‘Ready, Steady, Baby! [11]’ is distributed free of charge to every pregnant woman in Scotland through midwives at their antenatal booking appointment. It contains information aimed to improve the health and wellbeing of parents and their young children including information around employment issues.

We recommend reintroducing a printed publication containing detailed information on employment rights, health and benefits which should be shared with all women at their first booking in appointment.

Government should also consider the information requirements relating to their employment rights of the other groups covered by the proposed extended protections. The timing of this information provision should also be considered. For example, a sensible point to inform adoptive parents of their employment rights might be following approval at the adoption panel.

Gov.uk pages

The information contained on the gov.uk website is very limited in scope and detail. The information on pregnancy and maternity discrimination is limited to one sentence which merely states that it is “against the law to discriminate against anyone because of being pregnant” [12] Those visiting the site are then redirected to the ACAS website. Given the fact that the majority of women experience discrimination as a result of their pregnancy and maternity, it is difficult to see how this is sufficient.

A search of the relevant gov.uk pages also reveals scant information about redundancy and the specific additional protections afforded by Regulation 10. Given the importance of this addition protection and the evidence provided in the BEIS/EHRC research that some employers are ignoring these additional protections and targeting pregnant women and new mothers unlawfully for redundancy, it is concerning that there is such limited information available.

HSE guidance

One of the extremely concerning findings of the EHRC BEIS research was the evidence of working conditions that put the health of pregnant women and new mothers at risk.

The research revealed that 4% of mothers felt forced to leave their job as a result of workplace risks not being resolved; the equivalent of 21,000 every year. For younger mothers this rose to one in ten. Although most employers said they understood their obligations in this area, interviews revealed patchy understanding among employers. Only four per cent of employers had sought external advice or information on this issue. We welcome the HSE’s updating of its guidance on this issue but believe that this should continue to be actively promoted to employers to support take up and promote improved practice.

10 Effectiveness of information provision to employers

We do not believe the steps that are currently being taken are effective.

BEIS/EHRC research revealed patchy understanding among employers around pregnancy and maternity related rights [13]. Areas of particular concern were around recruitment of pregnant women and new mothers, health and safety and redundancy.

The EHRC research revealed:

  • The targeting of pregnant women and new mothers for redundancy. 1% of all pregnant women and new mothers were made compulsorily redundant in a redundancy exercise where they were the only person involved. A further 5% were made redundant – either compulsorily in an exercise where others were made redundant or through voluntary redundancy schemes.
  • Failure to offer suitable alternative employment. Half of employers (51%) did not offer a suitable alternative position to all or some of these employees (this only compliant with legislation if no alternative positions were available).
  • Failure to offer alternative positions to women on maternity leave ahead of other employees. Three in 10 (31%) had not offered them alternative positions, as legislation requires

One in 10 employers who responded to the survey reported low awareness of pregnant women’s rights and two-thirds of all employers spoken to (67%) had not sought information or guidance. Only 4% had sought information on issues such as time off for antenatal appointments or dealing with flexible working requests, yet 10% of the mothers surveyed experienced problems when they needed time off for antenatal appointments and 51% said they experienced negative consequences after approval of a flexible working request.

It is also important to note that the EHRC/BEIS research revealed significant levels of negative attitudes from employers towards the current protections around redundancy that exist for women during maternity leave. More than one in four employers (28 per cent) thought that enhanced protection from redundancy during Ordinary Maternity Leave was unreasonable. This was higher than the negative view of any other relevant legal protection. Only around half of employers (55%) thought that this right was reasonable.

Given the levels of discrimination experienced by women in redundancy situations coupled with the negative views of employers around existing protections, information provision to employers needs to be prioritised if these new extended protections are to afford more than paper-based protection. In order for these new protections to result in fewer instances of discrimination, employers need not only to be aware of their new responsibilities but also to be reminded of those they already have.


[1] EOC (2005) ‘Greater expectations – final report of the EOC’s investigation into discrimination against new and expectant mothers in the workplace’. Available at:https://www.equalityhumanrights.com/en/file/10501/download?token=hq-HrXQq

[2] EHRC (2016) Pregnancy and maternity related discrimination and disadvantage: a summary of findingshttps://www.equalityhumanrights.com/en/file/10521/download?token=WqAvNfz5

[3] EHRC (2016) Pregnancy and maternity-related discrimination: experiences of mothers Available at:https://www.equalityhumanrights.com/en/file/10511/download?token=fhYbcMUf

[4] EHRC (2016) Pregnancy and maternity-related discrimination: experiences of employers Available at:https://www.equalityhumanrights.com/en/file/10506/download?token=Bp7UeEtk

[5] Women and Equalities Committee Pregnancy and maternity discrimination

First Report of Session 2016–17 Available at:https://publications.parliament.uk/pa/cm201617/cmselect/cmwomeq/90/90.pdf

[6] Available at: https://www.maternityaction.org.uk/wp-content/uploads/AfMRActionPlanFINALOct2016.pdf

[7] Maternity Action (2017) Unfair Redundancies during pregnancy, maternity leave and return to work. UNFAIR Available at: https://www.maternityactioncampaigns.org.uk/wp-content/uploads/2017/11/RedundancyReportFinal.compressed.pdf

[8] EHRC (2016) Research report 105: Estimating the financial costs of pregnancy and maternity-related discrimination and disadvantage Available at: https://www.equalityhumanrights.com/en/publication-download/research-report-105-estimating-financial-costs-pregnancy-and-maternity-related

[9] Government Equalities Office (2018). The gender pay gap in the UK: evidence from the UKHLS.

[10] EHRC (2016) Pregnancy and maternity-related discrimination: experiences of mothers Available at:https://www.equalityhumanrights.com/en/file/10511/download?token=fhYbcMUf

[11] Available at: https://www.nhsinform.scot/ready-steady-baby

[12] Available at: www.gov.uk/working-when-pregnant-your-rights

[13] Pregnancy and Maternity Related Discrimination and Disadvantage: Experiences of Employers , EHRC, 2016 https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity…