Managing redundancy for those on maternity leave

Many employers get nervous when carrying out redundancy exercises if the selection pool includes a woman who is pregnant or on maternity leave. The risk of a claim for discrimination or an unfair dismissal claim if she is made redundant is often on their mind.

The fact that a woman is on maternity leave should not materially affect the process that an employer should follow when handling a redundancy exercise – it should essentially take the normal steps it would take when making redundancies. It just needs to be aware that pregnant women and women on maternity leave have extra protection in a redundancy situation and it may therefore be necessary for the company to take certain additional steps to reflect this, largely to reinforce the arguments against any allegation of discrimination.

There are a number of issues for employers to consider:

  • Is the redundancy genuine? An obvious question, but employers should ensure there is a genuine redundancy situation and that it has not simply arisen because of the woman’s pregnancy or the fact she is on maternity leave. The MD’s discovery that the temp is better at the job does not make the employee redundant. The discovery that the business can manage quite adequately in her absence without a temp might mean that someone is redundant, but not necessarily her.
  • Carry out a fair selection process. If an employer has decided that it needs fewer employees, it needs a fair selection process. It should use appropriate objective and non-discriminatory selection criteria. For example, if one of the selection criteria is attendance, it should ensure that it discounts any pregnancy or maternity-related absences during the protected period. If the pregnancy or maternity absence distorts what would otherwise have been her scores, consider what they would have been had she not been pregnant/on leave. If you are going to give her a score which differs downwards from that which her last appraisal would suggest, be able to explain why – it is not that performance cannot fall off after a good appraisal, but it you can’t prove it, the business is badly exposed to allegations that the score is rigged to ensure she is the one to leave. Against that, don’t be tempted to give her a better score than you think she deserves just because she is pregnant or on leave – down that path lie claims for unfair dismissal and discrimination from other employees put at risk or dismissed in her place.
  • Consult the employee and keep in touch. Employers are often reluctant to contact women on maternity leave because they do not want to disturb or worry them or be accused of disturbing their leave at some critical point, but adopting such an approach in a redundancy situation is dangerous, at least without the clearest medical advice to leave her alone.

It is important that employers consult any staff at risk of redundancy, even if they are on maternity leave. Forgetting about a woman on maternity leave and excluding her from the process could amount to unlawful discrimination, so the employer will just have to bite the bullet in those cases, make the call and send the letter, regardless of any prior agreement as to how and when she can be contacted. Better to over-inform and be asked to step back than to make assumptions as to what she will not be up to dealing with and so perhaps deny her a crack at a suitable alternative vacancy. If the woman asks, you can agree to consider her position only on her return or some later point in her leave, but you are not obliged to do this if her position being unresolved leaves the fate of other staff also hanging in the balance.

  • Consider alternative employment. If a woman’s role is made redundant whilst she is on maternity leave she has special protection when it comes to being offered alternative employment. In short, the woman is entitled to be offered any “suitable available vacancy” that exists at her employer, its successor or an associated employer (ie, anywhere in your corporate group, even if you are not normally on speaking terms with them). The obligation is proactive – the woman does not even need to apply for it. If an employer does not comply with this requirement then any dismissal will be automatically unfair. It is also likely to constitute unlawful discrimination. “Suitable available” means that the employee could do an adequate job of the role. It does not mean that she has to be perfect for the position or even the best candidate for it. Positive discrimination is alive and well in these cases! However, “vacancy” means just that – you are not obliged to create a role you do not need, nor to bounce someone else out of a job to make way for the woman on leave.
  • Don’t try to do the Right Thing. The Respondents’ Waiting Room at every Employment Tribunal is littered with the charred remains of employer good intentions along the lines of “I thought she wouldn’t mind the extra time off”, “She won’t want to work the hours/do the travelling the job needs any more”, “If I had just had a baby I’d really prefer a payoff”. No doubt the motivation in each case like this is immensely worthy but in Tribunal they just look like blatantly discriminatory assumptions and in practical terms cannot be defended.

Acas has published a useful guide entitled “Managing redundancy for pregnant employees or those on maternity leave”, which contains practical tips and a handy checklist for employers facing this situation.