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.
Misconception
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.
Attendance
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 indirect discrimination. Do not select employees on the basis of their status, such as part-time or fixed-term, because this will indirectly have an impact on pregnant staff or maternity leavers. For example, a redundancy policy that selects first for redundancy those who are not on permanent contracts will be discriminatory not only against women but those on fixed-term contracts.
Consultation
Absent employees must be included in the consultation process, as failure to do so exposes the employer to the risk of claims of sex discrimination and/or unfair dismissal. Employees on maternity leave must be informed about the proposals and receive the same information in writing as other employees. Actively involve them in the consultation process and contact them and discuss how they would like to proceed. The employee may want to meet at home or to have meetings outside of office hours. You should consider what you can do in the circumstances to make sure the consultation obligations are carried out fully – for example, consulting by phone and/or by letter. Also, the statutory right to be accompanied to consultation meetings applies during ordinary and additional maternity leave.
Finally, employers must bear in mind that employees on maternity leave have an automatic right to be offered alternative work if it’s available. If a new role is offered, it must be suitable for the employee to do in the circumstances. But if the employee refuses an offer of suitable alternative employment and is dismissed, the dismissal is quite likely to be fair.
Key points
- Adopt objective and fair selection criteria and ensure these are consistently applied.
- Ensure you include pregnant or employees or maternity leave in the consultation process.
- Don’t forget the priority position that an employee on maternity leave has in terms of alternative employment.
- Ensure you deal with the benefits such as redundancy pay and statutory maternity pay appropriately.
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Gagandeep Prasad, solicitor, Charles Russell
