Employers must be very wary when making expectant and new mothers redundant.
Recent comments by Marks & Spencer boss, Sir Stuart Rose, that women "have never had it so good" in the workplace contrast with other reports that pregnant women and new mothers are being unfairly targeted for redundancy during the recession. What are the issues are faced by employers seeking to make such redundancies?
The basic risks are these: if an employee is dismissed (which includes non-renewal of a fixed-term contract) while pregnant or on maternity leave, there are risks of a claim for unfair dismissal and/or sex discrimination if:
- There is no genuine redundancy situation – for example, she is dismissed ostensibly for redundancy but in reality, the employer prefers the employee who is doing the maternity cover;
- There is a genuine redundancy but the only or principal reason for her dismissal or selection is related to pregnancy, birth or maternity leave;
- She is not consulted because she is on maternity leave.
However, a common misconception held by employers is that they cannot make employees on maternity leave or pregnant employees redundant. There is nothing to prevent an employer making such an employee redundant, provided it takes care to avoid discrimination and ensures the decision is based on objective selection criteria and that fair procedures are followed.
The selection criteria used to select those to be made redundant should be objective and the criteria should be measurable, and not based on an individual's personal opinion.
Take care to ensure that the way the criteria are used can be supported by documents such as personnel or performance records. Consider involving more than one manager in the process of selecting and scoring to avoid any unfairness. Such documents would be disclosable in any litigation so ensure that not only are your selection criteria objective and fair, but that you have appropriate evidence supporting that process.
Some employers use attendance records as a criterion. Employers should check the accuracy of information and consider the reasons behind each set of absence. There may be some absence – for example, for pregnancy-related illness – that should be discounted.
Avoid the risks of indire