If an employer finds that they need to restructure their organisation and make redundancies, then it is extremely important that they are careful about the way they treat pregnant employees or employees on maternity leave.
In the first instance, it is important that employers understand pregnancy and maternity protection.
The purpose of this legislation is to:
- Protect the health of mothers and babies
- Minimise the problems that working women face due to starting a family
The Maternity and Parental Leave Regulations 1999 provides that from the beginning of pregnancy to the end of maternity leave is a ‘protected period’.
The law states:
- During this protected period, it is viewed as unlawful for a woman to be treated unfavourable because of her pregnancy or because she is on maternity leave
- A woman returning from maternity leave has the right to return to the same position as before she left; her position cannot be filled even if the employer believes the interim is a better employee
- Should an employer select an employee for redundancy on the grounds of pregnancy or maternity leave, this will be viewed as unlawful discrimination and unfair dismissal
- Failing to consult an employee on maternity leave about redundancy will be viewed as unlawful discrimination
- A female made redundant whilst on maternity leave, must be offered another suitable position. She should not be required to re-apply to the organisation.
How can employers manage redundancy that involves pregnant employees/employees on maternity leave?
If you are reorganising the workforce or downsizing and you need to make employees redundant, which includes a pregnant employee or one that is on maternity leave, employers should:
- Ensure the redundancy is genuine and unavoidable
- Make sure the employee is consulted
- Identify non-discriminatory selection criteria
- Look at alternative roles
Is the redundancy genuine?
Employers should ask themselves this question in the first instance, and ensure the redundancy is for a genuine reason and not caused by the pregnancy or maternity leave, genuine reasons include – closure of the business.
Employers often find that whilst the employee is on maternity leave, the business runs fine without her by readjusting and reorganising. However, this will not be viewed as a valid reason to make the employee redundant.
How should employers consult employees on maternity leave?
Employers should raise the issue as early as possible with all employees, alerting them of the proposed redundancies.
When doing this, employers should:
- Raise the reason behind the redundancy
- Discuss alternatives, such as voluntary redundancy or reducing working hours
- Alert employees at risk of the selection criteria
Failing to consult an employee on maternity leave is likely to be viewed as discrimination should the employee take a claim to the Employment Tribunal. If employers are reluctant to contact an employee on maternity leave in case of disturbing them, they should discuss preferred contact options prior to the employee going on maternity leave.
How should employers decide the right selection criteria?
If the employer chooses to use a selection process to decide who to make redundant ACAS states “it must be transparent, known by everyone it applies to and non-discriminatory.” Further, this process should be objective and measurable.
Expected criteria to be considered includes:
- Qualifications and the skills of that employee
- Attendance record
- Disciplinary record
- Customer feedback
It is important that when considering criteria, employers do not disadvantage the employee on the grounds of sex, pregnancy or maternity leave.
Is there a relevant alternative position the employee can be put in?
On occasions, employers may have alternative positions that they can offer a redundant employee. In this event, an employee on maternity leave who is being considered for redundancy must be offered this vacancy before anyone else. If you fail to do this, her dismissal may be viewed as automatically unfair.
If there is no other vacancy to be offered, a woman can be made redundant during maternity leave if the reason behind the redundancy is unconnected with the pregnancy or maternity leave and the employer can display they followed a fair redundancy process.
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Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.