ACAS, together with the Equality and Human Rights Commission, has published a very helpful guide for employers wanting to know how to tread through the minefield of making a pregnant employee redundant. Called, unsurprisingly enough, Managing Redundancy for pregnant employees or those on maternity leave it’s a very readable and concise guide and explodes a few myths on the subject, such as that you can’t make a pregnant employee redundant. On the contrary it is possible, provided it is done for a genuine redundancy reason, which doesn’t mean “we don’t have part-timers here” and reorganising accordingly to exclude her. The Guide is no substitute for taking legal advice if you’re an employer or employee, but is a useful introduction to the subject.
There is a checklist for managing the process fairly – key points for employers to note are;
- Ensure that women on maternity leave will not be disadvantaged by the redundancy selection criteria used, otherwise a claim for indirect discrimination may arise
- Do not fail to consult with women on maternity leave if they are affected by redundancy. They need to be kept informed
- Women on maternity leave have a right to return to their old job but, if that is no longer available, to be offered suitable alternative work and given preference over other workers for it. There is no requirement for the woman to have to apply for the role.
What is a suitable alternative role? This is often the nub of disputes, because employers will claim there is nothing else available for the woman returning from maternity leave. Where it is a large employer this becomes harder to justify, although much will depend on what role the employee was doing before leaving on maternity leave. However, if there is a suitable alternative role, it must be offered to the woman before other redundant staff – an example of positive discrimination, but one which is necessary to protect the interests of the women involved. The relevant law is contained in the Maternity and Parental Leave etc Regulations 1999
10.—(1) This regulation applies where, during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.
(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).
(3) The new contract of employment must be such that—
(a)the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.
Note that the alternative role must involve work which is suitable “in relation to the employee and appropriate for her to do in the circumstances”. This means that it must be within her skill set and experience, although I often wonder what the words “in relation to the employee” add.
The new role must also not be offered on less advantageous terms (“substantially less favourable”). That is wider than just pay. If the new role involved more pay, but required much longer working hours, or involved travelling when the old role did not, that might well constitute less favourable terms. The difficulty for a woman facing a job offer which isn’t to her liking is that if she turns it down, she will effectively have resigned and will not be entitled to SRP. Furthermore, her claim for unfair dismissal and discrimination may well founder if the new role is deemed to have been suitable because she will have turned down a reasonable job offer.
The ACAS guidance concludes with ten “myth busters”, which include, in addition to you can’t make a pregnant woman or a woman on maternity leave redundant, such misconceptions as “if I make a pregnant woman redundant I don’t have to pay maternity pay as well”. An employer has to pay Statutory Maternity Pay (“SMP”) if she qualified for maternity pay and is made redundant before going on maternity leave but after the 15th week before the EWC (“expected week of childbirth”). Any contractual entitlement to maternity pay over and above SMP will usually end when the contract ends.
Another myth which should be exploded is that women on maternity leave cannot be contacted about work issues during their absence. The law provides for Keeping in Touch (“KIT”) Days and if redundancy will affect her, the employer is under a duty to consult and keep her informed, although the employer needs to be flexible and sensitive towards the employee.
There are also useful sections on whether there is a redundancy situation and selection criteria. The key is not to take action or treat a woman differently because she is pregnant or on maternity leave. And that, say the critics who think employment law is too complex, or too favourable to employees, is the problem. I don’t think that is right. If an employer acts genuinely and can demonstrate the reasons why they have taken the decisions they did, provided they consult and act reasonably it can be hard to attack the decision. What is the alternative? To remove protection from pregnant women/new mothers? That is unacceptable.
(By the way, this post doesn’t constitute legal advice.)