Back in July 2020, the BBC reported on the strain that the COVID-19 pandemic has placed on working mothers and female carers, and the long term impact this might have on gender equality in the workplace.

As my colleague Laura Darnley commented back then, “women already face unconscious (or not so unconscious) bias in the workplace regarding their skills and capability. New research has found that the pandemic is exacerbating these inequalities.”

In this article we explore the impact that redundancies during the COVID-19 pandemic are having upon pregnant women and those on maternity leave.

In a recent ACAS survey 37% of employers stated that they were likely to make redundancies in the next 3 months. This is on top of the large number of employees who have already lost their jobs due to redundancy in the past 6 months.

Unfortunately, this comes as no surprise. COVID-19 and the resultant downturn in the economy, together with the impending end of furlough has brought cost savings into sharp focus for many employers. Obviously, one of the cost reduction options that employers are likely to consider is redundancies. This is reflected in our own experiences of an increase in the number of enquiries about redundancies both from an employer and an employee point of view.

It goes without saying that everybody has felt the impact of COVID-19 in some shape and form and that unfortunately many people will be made redundant as a result of the virus.

I was shocked, but sadly not surprised, by the results of a survey conducted in July 2020 for the charity Pregnant then Screwed. They make for grim reading about the impact of COVID-19 for mothers and pregnant women, particularly in relation to redundancy.

The survey, which was conducted on their behalf, was answered by 19,950 mothers and pregnant women over a 2 day period in July 2020.

The following figures stood out for me:

• 11% of pregnant women have been made redundant or expect to be made redundant
• 46% of those being made redundant say that a lack of childcare provision played a role in their redundancy status
• 53% of pregnant women believe their pregnancy was a factor in their redundancy decision
• 61% believe their maternity leave was a factor in their redundancy decision
• 67% of BAME pregnant women believe their pregnancy was a factor in their redundancy decision

What does the law say?

Pregnancy and maternity is one of the protected characteristics under the Equality Act 2010 and pregnancy and maternity discrimination is unlawful.

Selecting an employee for redundancy because of her pregnancy or being on maternity leave or including, for example, pregnancy- related illness as one of the selection criteria amounts to discrimination.

In some situations pregnant employees and those on maternity leave who are at risk of redundancy are entitled to be treated more favourably to their colleagues, for example, in relation to being given first refusal on any suitable alternative employment.

If an employer is found by an employment tribunal to have engaged in unlawful pregnancy discrimination in relation to redundancy then not only will an employee be entitled to compensation for the financial loss they have suffered (such as loss of earnings, loss of pension and other financial loss), they will also be entitled to an injury to feelings award which, in the most serious of cases, could be up to £25,000. Only in “the most exceptional cases" would figures top this amount. It’s important to bear in mind that in the context of discrimination claims, compensation for financial loss is uncapped. Where the employee is a high earner this can lead to very expensive employment tribunal awards against employers.

If the employee has been dismissed then they would also likely be able to bring a successful claim of unfair dismissal, potentially a claim of automatically unfair dismissal, which would bring into play its own compensation.

For employers there is also a reputational risk in a judgment of unlawful discrimination being made against you.

What should you do?

If you are an employer contemplating redundancies we would strongly recommend that you contact a member of our Employment Team to take legal advice at an early stage before you propose redundancies.

If you are a pregnant woman or mother on maternity leave, or have recently returned from maternity leave and find yourself at risk of redundancy, then our experienced Employment team is here for you. We provide the sensitive, tailored, expert advice you need when it matters most.

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.