There can be confusion amongst employers around the issue of redundancy when an employee is pregnant or on maternity leave over what is permitted, given such employees are afforded special protection under employment legislation and may bring claims in an employment tribunal if not treated fairly.
It’s important that employers fully understand the current legal framework as any employer seeking to carry out a redundancy or restructuring exercise needs to be particularly careful when dealing with employees who are pregnant or on maternity leave.
This does not mean that an employer can never dismiss a pregnant member of staff or those on maternity leave. But there must be a genuine redundancy situation and the employer must have carried out a fair procedure and taken into account the rights of such employees.
The potential claims that can arise if the law isn’t followed are unfair dismissal, pregnancy and maternity discrimination and sex discrimination. It is automatically unfair treatment for an employer to select a woman for redundancy for pregnancy, childbirth or maternity-related reasons. Further, she is not required to have the normal two years of qualifying service to bring such a complaint.
A dismissal because of an employee’s pregnancy, pregnancy-related illness or maternity leave will also amount to an act of pregnancy and maternity discrimination under the Equality Act 2010.
Below are the key points employers must follow when dealing with pregnant employees and those on maternity leave in a redundancy situation:
• Ensure that any selection criteria are objective and non-discriminatory and that they are applied fairly. While it goes without saying that an employer should not select an employee for redundancy simply because she is pregnant or on maternity leave, the employer also needs to ensure that any selection criteria do not indirectly discriminate against pregnant employees or those on maternity leave.
• When carrying out consultation remember to include those on maternity leave. Women on maternity leave should be given information about the proposed redundancies in the same way and at the same time as other employees and should be involved in the consultation process. If a woman on maternity leave is excluded from the consultation process, this is likely to render any dismissal unfair and amount to pregnancy and maternity discrimination.
• Offer any suitable vacancies to those employees on maternity leave. If a vacancy that is suitable for an employee on maternity leave exists, she must be offered it even if this means that she is treated more favourably than her colleagues who are also at risk of redundancy. This is the case even if the other employees are better qualified for the position than she is.
• Consider whether an employee will be entitled to receive statutory maternity pay, even if she is made redundant before it becomes payable. Once a woman has qualified for statutory maternity pay she will be eligible to be paid for the full 39-week period even if she is subsequently made redundant. She will be entitled to statutory maternity pay if she is dismissed after the start of the qualifying week (the 15th week before the expected week of childbirth), even if she was not planning to start her maternity leave until closer to her due date.
• Provide a written statement of reasons for dismissal without waiting for a request for one. The Employment Rights Act 1996 states an employee is entitled to receive a written statement of the reasons for her dismissal if she is dismissed at any time while she is pregnant, or if she is dismissed after childbirth and her maternity leave period comes to an end because of her dismissal. If her employer unreasonably fails to provide the statement or provides inadequate or untrue reasons the employee may present a complaint to an employment tribunal.
Jo Stubbs is the head of content at XpertHR.
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