Maternity (including pregnancy) is one of the nine "protected characteristics" covered by the Equality Act 2010 (EqA). The EqA states it is unlawful to treat a woman unfavourably because:

• of her pregnancy;
• of an illness she has suffered as a result of her pregnancy;
• she is on compulsory maternity leave;
• she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

Under the Employment Rights Act 1996 and the Maternity and Parental Leave etc. Regulations 1999 (the 1999 Regulations), it is also unlawful to cause detriment to women who are pregnant or on maternity leave.

Furthermore, special protection is offered to women on maternity leave under Regulation 10 of the 1999 Regulations (Regulation 10). Regulation 10 provides that, where a redundancy situation arises during maternity leave and "it is not practicable by reason of redundancy" for the employer to continue to employ a female employee under her existing contract, she is entitled to be offered a suitable alternative vacancy. An employee in such a position essentially has the first choice as to whether they want to accept the alternative job (if there is a suitable one available), without having to undergo any selection process for the role.  

It is important to note that the protection under Regulation 10 applies only once the employee on maternity leave has been selected for redundancy. An employer cannot exclude an employee on maternity leave from the redundancy pool and the risk of selection, or simply move them into an alternative role to keep them safe. Doing so may result in sex discrimination and unfair dismissal claims by that employee's colleagues.

Mirror protections exist for those who take adoption leave or shared parental leave. 

What is a suitable alternative vacancy?

When deciding whether a vacant role is a suitable alternative vacancy, employers should consider the following:

• whether the work to be done is both suitable and appropriate for the employee; and
• that the terms and conditions of new employment are not substantially less favourable to those under the previous contract. 

In reality, without engaging properly with an employee, it can be difficult for an employer to decide whether a role is a suitable alternative vacancy. If there is no suitable alternative vacancy, the employee on maternity leave should be treated the same way as other employees. 

Consequences of a failure to provide a suitable alternative vacancy

Failure to offer a suitable alternative role under Regulation 10 may result in the employee's redundancy being automatically unfair. It may also give rise to a discrimination claim on the grounds of pregnancy and/or maternity under the EqA. 

Time for change?

The period of protection under Regulation 10 is currently limited to the duration of maternity leave (it includes both ordinary and additional maternity leave).  

However, there are concerns that, in a bid to overcome the Regulations, employers simply wait until an employee returns from maternity leave to implement redundancies. As it stands, Regulation 10 offers no protection once the employee has returned to work. 

In response to these concerns, the Department for Business, Energy and Industrial Strategy conducted a consultation in 2019 into the protections for women at work. Following the consultation, the government announced that it would extend this protection to cover the whole period from the point the employee informs their employer that they are pregnant, whether orally or in writing, until six months after the employee returns to work. It also indicated it would extend the protection to those who take adoption leave on the same basis, as well as extending the protection for parents who take shared parental leave. 

A Private Members' Bill that seeks to facilitate these extended protections is making its way through Parliament.  The Bill would give the Secretary of State the power to make regulations that would extend the current protections.  Even if the Bill becomes law, we are unlikely to see any change to the existing protections before 2024 or even 2025.

In the meantime, employers should be mindful of their obligations towards pregnant employees and those on maternity leave, especially in a redundancy situation. Regulation 10 is a rare example of positive discrimination in UK employment law and employers should be wary not to fall foul of its protections.