It is a myth that employees who are pregnant or on maternity leave cannot be made redundant. Although an employee must not suffer any detriment for a reason connected to her pregnancy or maternity leave, it is still possible to make her redundant, provided there is a genuine redundancy situation. However, employers must exercise extra care.
The Dismissal Cannot Be Because Of Pregnancy Or Maternity Leave
The dismissal must not be connected in any way with the pregnancy or maternity leave, otherwise, this would be automatically unfair and unlawfully discriminatory. Just because a business can cope without an absent employee by redistributing her workload this does not mean there is a genuine redundancy situation.
Don’t Forget To Consult
Employers can sometimes forget about staff who are not physically present in the office. It is essential that employees on maternity leave are actively involved in the consultation process. Failure to consult can result in allegations of procedural unfairness and discrimination claims.
Apply Fair Selection Criteria
Ensure that the scoring criteria do not penalise employees due to their maternity absence or pregnancy-related sickness.
However, there are also pitfalls in giving an employee who is pregnant or on maternity leave “the benefit of the doubt”. Inflating the score of an employee who is pregnant or on maternity leave could result in a claim by a male employee for sex discrimination. You should not leave employee on maternity out of a redundancy exercise on the basis that you will review whether you require them when they return as this is likely to cause issues for others in the same department/team who may be able to bring claims based on your failure to include the maternity leaver in your considerations. The question is whether in the event the maternity leave employee was not on materity leave would that role be redundant?
Alternative Roles: At The Front Of The Queue
An employee who is pregnant or on maternity leave has an automatic right to be offered any suitable vacancies or alternative roles which are available ahead of other employees. Failure to do so may result in an automatically unfair dismissal. The employee does not need to apply for the suitable alternative role or be interviewed/take part in any competitive process.
This means that where an employee who is pregnant or on maternity leave and a male employee are both at risk of redundancy, she must be offered a suitable alternative role first, even if the male employee is a better candidate. If she unreasonably refuses such an offer she may lose her right to a redundancy payment.
If The Employee Is Made Redundant
Where the redundancy of an employee on maternity leave is confirmed, that employee will be entitled to notice, statutory redundancy pay (if she is eligible) plus the balance of her statutory maternity pay and holiday pay which would have accrued during that period. If the employee was receiving contractual maternity pay over and above statutory maternity pay these payments would end, unless agreed otherwise.
If you need advice or have any questions in relation to redundancy and maternity, please contact David Greenhalgh on 020 3603 2177.
This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.