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:
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:
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:
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:
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:
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.