On the face of it, a woman on maternity leave has some of the strongest protections afforded to anyone under English employment law. From the moment the employer becomes aware of a pregnancy, to the day that the mother returns from maternity leave, that woman is in a 'protected period'.
During the protected period, a woman has enhanced protections from redundancy. If a redundancy situation arises, then that woman must be offered a suitable alternative role in preference to anyone else.
This represents one of the few examples of positive discrimination not only permitted but required under English law.
Imagine a team of five solicitors. Due to a downturn in business the team needs to be reduced to four. Even if the woman on maternity leave was the least qualified and least skilled in every measurable way (objective or subjective), she would still need to be given one of the four remaining roles and one of the ‘better’ employees would be dismissed.
If this did not happen, then that mother’s dismissal would be automatically unfair.
In practice, the only way to fairly make a woman redundant during her protected period is to show that her role is either entirely unique and that there are no suitable alternative roles for her to carry out, or, to dismiss an entire team.
For example, during the pandemic there were several cases where office managers or office management teams were dismissed because the company in question was no longer operating an office.
In addition to this enhanced protection from redundancy, mothers also have protection under the Equality Act 2010. Under the Equality Act, it is unlawful for an employer to treat a mother less favourably because of her pregnancy or maternity leave.
By way of example, if a woman was demoted or passed over for promotion as a result of beginning maternity leave, then that would be discrimination. Dismissing a woman because she was on maternity leave would also be discriminatory (but proving this can be difficult).
An ongoing problem
Despite this legal protection, many employment lawyers (including ourselves) will tell you that pregnancy and maternity discrimination is more prevalent than almost any other kind.
It is almost unheard of to hear an employer attempt to justify treating someone less favourably because of their race, religion or almost any other protected characteristic, however, some employers still react very badly to women wanting to take long periods of maternity leave.
In 2018, the UK government commissioned a report about pregnancy and maternity leave after interviewing 3,034 employers and 3,254 mothers.
The results of this report back up the anecdotal experience of many employment lawyers.
Of the mothers surveyed, 11 per cent (one in 9) reported that they were either dismissed due to maternity leave or treated so badly that they felt they had to move to a new company. Furthermore, one in five faced harassment or negative comments related to pregnancy or flexible working.
