Is it automatically unfair to make an employee on maternity leave redundant?
Not necessarily, but it is trickier…
Employees returning from ordinary maternity leave (the first 6 months) have the right to return to their original job unless that job is no longer available. Employees on additional maternity leave (the second 6 months) have the right to return to the same job unless it’s not reasonably practicable for them to do so. In which case, they must be offered a suitable alternative role on terms which are no less favourable.
Redundancy may be an option if there is a reduced requirement for the employee’s job. However, there are issues involved with choosing selection criteria that could indirectly discriminate against pregnant employees or those on maternity leave. In this feature, we discuss the extra rights employees on maternity leave have, with regards to any opportunities for suitable alternative employment.
We previously outlined the employer’s duty to identify suitable alternative employment for an employee facing redundancy. However, employees currently on maternity leave have a right to be offered ANY alternative employment that exists, provided that it is deemed suitable, both in respect of the type of work and where it’s to be done. The terms and conditions must also be no less favourable than the employee’s current terms and conditions.
So, what does this mean for employers when considering alternative employment options?
The fact that there may be other candidates who have more experience, or be better equipped for the role, has no bearing – the employee on maternity leave has an absolute right to be offered the position.
This is a legislative provision of which many employers are unaware, and when they are aware, they find it difficult to accept, as it essentially removes their freedom to choose the best candidate for the role.
Despite the apparent unfairness to those who aren’t on maternity leave, the consequences of failing to comply with this obligation can be serious, giving rise to successful claims of sex discrimination, the financial awards for which are uncapped. Employers must also be careful not to incorrectly apply this additional protection to other aspects of the redundancy process, thereby disadvantaging other affected employees and unwittingly providing them with grounds for a claim.
Situations involving the redundancy of employees who are pregnant or on maternity leave can be a complex area to navigate. For further advice with these problematic areas of redundancy, please take a look at our Factsheet on Redundancy and Maternity, and don’t hesitate to speak to any of our consultants, who can provide training, template documents and on-site support as required.
In our final feature of this series, we will be looking at the statutory trial period which applies where a potentially redundant employee is offered an alternative role, and what happens if the trial is unsuccessful.