REDUNDANCY PROTECTIONS DURING PREGNANCY & MATERNITY LEAVE

By Louise McCosh FD People

In this the first of a series of regular Employment Law Updates from FD People, we take a look at the impact of 3 pieces of proposed legislation expected in 2023, including changes to flexible working, the introduction of carers’ leave and additional redundancy protections during pregnancy and maternity leave.

With the recent findings the gender pay gap has reduced by only 0.5% since reporting was introduced 5 years ago, meaning women in the UK earn 13 pence less than men on average, you would be forgiven for thinking there has been little progress in supporting family friendly working.

We all know the gender pay gap is hugely complex, not least the calculations themselves! There are many facets that impact on the glacial progress, and it seems the government are acutely aware of these challenges with proposals for several new pieces of family friendly legislation.

Three key changes have been announced - flexible working rights will be getting a shake up, along with the introduction of carers’ leave and extended redundancy protections for pregnant and new mothers. There is no set date for the introduction of these new laws, but the government are backing the Bills through parliament, and it is anticipated they could become law for employers this year.

Flexible Working Changes

Probably the most wide reaching of the three proposals is the reforms to flexible working, and the changes proposed are a significant shift from the status quo:

• The right to request flexible working will become a day one right with no minimum service requirements (the current position is an employee must have 26 weeks’ continuous service);

• Employees will no longer have to justify the effect of their request for the employer, and how the change might be dealt with;

• Rejecting a flexible working request will require consultation by the employer;

• Employees will be able to make two flexible working applications per annum rather than the current right to one application; and

• Decisions on the outcome of a flexible working request will require to be made within 2 months as opposed to the current 3 months.

Carers’ Leave Introduction

Carers currently have very limited rights under what is known as Time Off For Care Of Dependents providing ‘reasonable’ unpaid time off. The proposed legislation would be much more prescriptive giving the right for unpaid carers to take up to one week (five working days) of unpaid leave per year. Like the changes to flexible working, it is anticipated this would be a right regardless of length of service. Employees will not be required to give evidence of the request for leave, and employers will not be able refuse requests, but they will be able to delay requests on limited grounds. It is expected employees will be able to choose to take leave in a flexible way such as single days, half days or a full week.

Redundancy Protections During Pregnancy & Maternity Leave

It is well understood by employers that employees expecting a baby, or those on or returning from maternity leave are already the most protected category of workers in employment law. However, these new proposals will broaden the rights of expectant and new mothers a step further by extending the period of protection for redundancy from the point of an employee informing their employer they are pregnant until 18 months after the birth of their child. What this means in practice is that in redundancy situations pregnant women and expectant mothers will have the right to be offered suitable alternative employment for a longer period. It does not mean that this group of workers will be immune from redundancy, but essentially there will be additional protections from pregnancy right through to a child reaching 1 and a half years old.

Impact of Changes

There is no magic wand to changing the significant challenges faced by working families, and at the risk of sounding pessimistic, these new pieces of legislation, even collectively, are somewhat of a drop in the ocean in addressing a highly complex issue.

However, they are definite progress - the fact that the government are proposing several new pieces of legislation to give enhanced rights and protections for those with caring responsibilities are a step in the right direction. For employees, the new legislation will give that little bit more protection and confidence in making requests to support their family. For employers, although many have become far more flexible than ever, the introduction of additional laws will serve as clarity on what is expected. Whilst these three reforms to family friendly rights are not going to reduce the gender pay gap or solve inequalities for working families overnight, perhaps the government are taking the view with these new proposed laws that the best way to eat an elephant is one bite at a time!