For example, an employer cannot decide to make a mother redundant one week before she returns from maternity leave but then wait until the mother returns to implement the earlier decision.
Sadly, it is not uncommon for a company to announce a restructure shortly after an employee’s maternity leave ends. Anecdotally, we have acted for women in cases where it is quite clear that the company wanted to dismiss a woman during her maternity leave but kept no record of this.
Also, companies sometimes prefer a maternity cover to the employee on maternity. Alternatively, employers might redistribute work and find that they no longer need the role that the mother occupied.
In these situations, it is not uncommon for women to return to work, find that there is little for them to do and then face a redundancy consultation a few weeks later. Either would be discriminatory, but this is difficult to prove.
The proposed changes
If you agree that a woman’s career should not be hindered by maternity leave, then it is hard to argue that the current law offers sufficient protection. It is therefore positive that the government has sought to reform the protection given to mothers.
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 are due to come into force in April 2024. Under the MASPA regulations, the most important change will be to significantly extend the protection period.
Instead of the protected period ending the day that the woman returns to work, the protected period will now last for 18 months from the expected week of childbirth (or the date that the child is born if the employer is informed). The same protections will apply for adoption leave, with the protected period applying for 18 months after the child’s placement.
Birth partners will also benefit from the same protected period if more than six weeks of shared parental leave is taken.
This is a meaningful change in the law. In practice, women will have enhanced protections for at least six months after they return to the office. This should help to ensure that women do not face redundancy immediately after returning.
Knowing that women will have enhanced rights for at least six months will cause employers to think twice about whether to simply keep on any maternity cover.
Furthermore, if a woman’s work has been redistributed among colleagues, then it will be one of those colleagues facing redundancy if there is a restructure during the extended protected period.
It is hoped (not unreasonably) that by having at least six months back at work, women will be able to get re-established in their companies before redundancy can be considered.
