Monday, November 12, 2012

Managing Redundancy During Pregnancy and Maternity Leave

In practice, the rules that an employer should follow are relatively straightforward. In July 2012 ACAS published new guidance on this topic, in an attempt to clarify the matter for employers.
Redundancy is potentially a fair way of dismissing an employee and this is the same in relation to employees who are pregnant or on maternity leave. Assuming the redundancy is genuine an employer must go through a fair process including consulting, exploring alternatives and applying fair selection and scoring criteria. In these respects the law recognises that pregnancy is a unique condition and requires special treatment.
The key principle for an employer to appreciate is that they must ensure that a woman who is pregnant or absent on maternity leave is not disadvantaged as a result. This period is known as the "protected period".
Advice for employers - What to Do and What to Avoid
Is it fair to dismiss?
Dismissing an employee by reason of redundancy is potentially a fair reason for a dismissal, even during the protected period. Unfairness arises if a woman is selected because she is pregnant or on maternity leave.
Special Consideration
A woman is entitled to special consideration during the protected period. If she suffers any disadvantage during this period, such as dismissal, that she would not have suffered had she not been pregnant or on maternity leave, she will have a claim for automatically unfair dismissal.
Direct discrimination
Dismissing a woman unfairly during the protected period by reason of redundancy amounts to direct discrimination. There is no need for the woman to demonstrate that a comparator was or would have been treated any differently. The detriment itself is sufficient.
Right to return
A woman who has been absent on maternity leave has the right to return to the same job. If this is not possible, she is entitled to be offered a suitable alternative vacancy. The employer has a duty to show that an offer of an alternative role was explored and offered if available.
Redistributing workload
An employer cannot redistribute the employee's workload while she is on maternity leave and then determine that her role has been made redundant as a result. This would give rise to an automatically unfair dismissal and a discrimination claim.
A failure to consult a woman on maternity leave about the risk of redundancy, even if difficult to achieve in practice, is likely to amount to unlawful discrimination. As a practical matter, try to agree the method by which you will keep in touch prior to the employee going on maternity leave.
Selection criteria
Using attendance or absence relating to pregnancy/maternity leave as a selection criterion to score a female employee is likely to be considered automatically unfair and give rise to a claim for unfair dismissal and pregnancy-related discrimination. Selection criteria need to be non-discriminatory.
Suitable alternatives
A woman who is made redundant whilst on maternity leave must be offered any suitable alternative vacancy available, even if she does not apply for it or is not the most suitable candidate. A suitable alternative is one that is no worse than her previous job when it comes to status, location and terms.
Removing disadvantage
Special treatment should not go beyond what is necessary to remove any disadvantage. Any excessively favourable treatment that goes beyond that which is necessary to redress any disadvantage may result in a discrimination claim from a male counterpart.
Competitive process
If there is more than one employee on maternity leave and only one suitable alternative vacancy, the employer must score and select the most suitable out of those candidates.
Maternity pay
If the employee qualifies for statutory maternity pay they are entitled to receive 39 weeks of statutory maternity pay even if the redundancy takes effect during the statutory maternity period. However, any enhanced maternity pay is unlikely to be payable unless the employer's contract or policy says that it is.
Equality applies to all
Equality laws apply to all employers, regardless of size.

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