Redundancy consultation for pregnancy and maternity leave – How should an employee on maternity leave be treated in the context of a pending redundancy exercise?
By and large, she should be treated the same as other affected employees. However, there were also certain areas where she should receive preferential treatment.
Under Section 18(6) of the Equality Act 2010, the period from the beginning of pregnancy to the end of maternity leave (ordinary and additional) is defined as a ‘protected period’ during which direct pregnancy and maternity discrimination occurs if the employer treats the employee concerned unfavourably.
- because of her pregnancy;
- because of any illness suffered by her as a result of pregnancy;
- because she is on compulsory maternity leave;
- because she is exercising or seeking to exercise the right to ordinary or additional maternity leave; or
- because she has exercised or sought to exercise the right to ordinary or additional maternity leave.
Where an employer is considering making compulsory redundancies, there are a number of ‘special considerations’ that should be made to ensure the employee is not put at any disadvantages. Some of these are well known and straightforward:
- A woman on ordinary maternity has the right to return to the same job she had before she left.
- A woman on additional maternity leave has the right to return to the same job, or a suitable alternative job if a return to the same job is not reasonably practicable (e.g. because the job no longer exists).
- An employer cannot select a woman for redundancy because she is pregnant (therefore do not count any maternity related absence or poor performance that may be a result of the pregnancy in any selection criteria).
- A woman on maternity leave must be included in the consultation process.
However, others are more complicated and/or less well known:
- If an employer reorganises the work of a woman whilst she is on maternity leave and finds it can cope without her, this is not a valid reason to make her redundant.
- If a valid reason for redundancy does arise whilst a woman is on maternity leave, the employer must ensure that she is not disadvantaged by the redundancy process. However, the employer need not do more than is reasonably necessary to achieve this, especially if to do so would prejudice others who are also at risk of redundancy (e.g. do not score the selection criteria with the highest score possible because the woman is pregnant or on maternity leave – instead take an assessment over a longer period of time).
- A woman on maternity leave must be offered any suitable alternative employment (if there is any) before colleagues who are not on maternity leave, and there is no requirement for her to apply for the job (this does not apply to a pregnant woman still at work). This is because a woman on maternity leave may not be able to apply for jobs or attend interviews when she is about to give birth or is at home with a new born. She may also be at a disadvantage because she has been out of the workplace for some time.
- If the woman is offered the job some time before returning from maternity leave, the employer would have to keep the new job open and if necessary would have to back-fill the job temporarily pending the woman’s return, despite any additional cost or inconvenience.
- Employment can be terminated before the end of the woman’s period of maternity leave – there is no requirement to continue with consultation until the end of the maternity leave.
Notwithstanding the above guidance, we would still urge you to seek specific advice on individual situations as context often requires more finely tuned support in order to limit the risks involved in this rather precarious areas of employment law.
Employee Management Ltd can help ensure compliance with current employment law requirements via the provision of HR training, robust policies and commercially focused advice. We can also undertake comprehensive workplace investigations and if a situation escalates to litigation then tribunal representation is one of our main employment law services. If your business has a current need in any of these areas, please contact us without delay.