by Duncan Bauchop, Trainee Solicitor

The UK government announced on 25th January the opening of their new consultation on parental leave, specifically whether the protection from redundancy afforded to mothers while on maternity leave should be extended to cover the period spanning the 6 months after their return to work, and whether other classes of individuals, such as adoptive parents or couples sharing parental leave, should be afforded greater protection and rights.

The status quo

At present, this area of the law is governed by the Employment Rights Act 1996, Maternity and Parental Leave Etc. Regulations 1999 (MAPLE) and the Equality Act 2010.

Eligible female employees in the UK are entitled to up to 52 weeks of maternity leave. During the first 26 weeks they should receive at least 90% of their average weekly earnings and, during the second 26 weeks, the lower of either £145.18 or 90% of their average weekly earnings. Eligible employees need not take all of their statutory maternity leave entitlement. However, they must take at least 2 weeks off following giving birth, or 4 weeks for a factory worker.

Under statute, men are entitled to up to 2 weeks’ paternity leave if their partner has had a child, adopted or involved in a surrogacy arrangement.  

Under the Equality Act 2010, it is unlawful to discriminate against a woman during the ‘protected period’.

The ‘protected period’ runs from the beginning of her pregnancy until either:

(a) she returns to work from ordinary or additional maternity leave or,

(b) two weeks after the end of her pregnancy, if she is not eligible for maternity leave.

In addition, under MAPLE, before making an employee on maternity leave redundant the employer must offer the employee suitable alternative employment. The alternative employment offered must be suitable and appropriate for the woman to do in the circumstances. However, at present, this additional protection ceases when women return to work. 

The proposals

The government is proposing extending this protection to the 6-month period after mothers return to work. This is a response to claims by many that they are discriminated against and even sometimes forced to leave following a return to work from parental leave. According to a study carried out by the Department for Business, Energy and Industrial Strategy (BEIS), 1 in 9 women interviewed stated they had either been dismissed, made redundant or treated so poorly they were forced to leave after returning to work from parental leave. 1 in 5 said they felt they had suffered some other form of financial detriment, eg loss of a potential promotion, salary reduction or reduction of a bonus. The same study estimated as many as 54,000 women in the UK lose their jobs every year as a result of pregnancy or maternity.

In addition, there are plans to extend the rights and protection afforded to adoptive parents and couples sharing parental leave returning to work. In Sweden, for instance, couples are entitled to up to 16 months parental leave. At least some of that parental leave must be taken by the father and generally the leave tends to be fairly evenly split. While the government’s proposals are a far cry from the Swedish position, the willingness to consult on this matter indicates the growing trend towards shared parental leave.

There are also plans to consolidate existing legislation. As the BEIS’s study highlighted, the area is complicated, involving several different statutes, and much time and money is wasted by employers trying to ascertain exactly what their obligations are. It is hoped through consolidating the relevant legislation that this area of law will be made easier to comprehend and therefore easier for employers to comply.

Theresa May announced:

People in this country already benefit from some of the most rigorous workplace standards in the world, including parental leave and pay entitlements, but we are determined to do even more as we leave the EU.

It’s unacceptable that too many parents still encounter difficulties when returning to work. Today’s proposals are set to provide greater protection for new parents in the workplace, and put their minds at ease at this important time.

It is hoped that the proposed measures will afford greater protection towards those, in particular women, returning to work after having a child. It still waits to be seen how the public will respond.

The closing date for comments is 5 April 2019.