Extending Positive Discrimination

Currently, employers have to give priority to women on maternity leave who are at risk of redundancy when offering suitable alternative employment. It really is the only form of positive discrimination that is permitted. However, the government has today published a consultation paper, which now proposes to extend this right to:

  • women who have returned from maternity leave in the previous six months;

  • women who have advised their employer that they are pregnant; and

  • those on adoption leave, shared parental leave and longer periods of parental leave.

To be clear, this does not prohibit making any person falling under such category redundant. It does however provide an extra layer of protection to those in such circumstances, giving them priority where suitable alternative employment is available. Currently, what is suitable will depend on the following:

  • whether the work to be done is both suitable and appropriate in the circumstances; and

  • whether the capacity and place in which the employee is to be employed, and the other terms and conditions of employment, are not substantially less favourable than what they would be in their old job

What an employer can offer by way of alternative employment will very much depend on what is available at the time. As there is an ongoing obligation to consider what alternative employment is available, employers must ensure that if an alternative role becomes available before the employee is actually made redundant, the employee should be offered it. 

For the avoidance of doubt, employers are not required to create a new role or jobs for employees during a redundancy process. They do however have to consider any alternatives to avoid redundancies and are required to offer roles that may be available at the time.

The government are looking for responses from individuals and businesses to understand the cost implications of any such extension and what benefits the extension would bring. They have also asked if the proposals go far enough and if not, what further improvements are required. 

There will be a mixed response no doubt and responses to the consultation paper are due on 5 April 2019. We will keep you updated on what those responses are nearer the time however, should you have any queries about this particular matter or any other employment query, please do not hesitate to contact Ingrid McGhee at imcghee@leyton.com or any other of our experienced solicitors in our legal team at legal@leyton.com.

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