In partnership with the Equality and Human Rights Commission, ACAS has published a new good practice guide on the particularly tricky topic of managing redundancy for pregnant employees or those on maternity leave.
In my experience, employers are generally very wary of forcing redundancy upon a pregnant employee or those on maternity leave. Indeed I would go as far to say that there is a widely held belief that pregnant employees and those on maternity leave cannot be fairly selected for redundancy. This is not correct but the belief, I’m sure, stems from the extensive pregnancy and maternity protection afforded to employees, coupled with the already delicate nature of any redundancy process.
In an attempt to dispel this myth, the new ACAS guide provides a useful overview of pregnancy and maternity protection for employees. The following rights are particularly relevant in the context of a redundancy situation:-
- Employers cannot treat an employee less favourably because she is pregnant or on maternity leave;
- Employers should not select an employee for redundancy because of her pregnancy or maternity leave; and
- In a redundancy situation, an employee on maternity leave has the right to be offered alternative employment (which is both suitable to the employee and appropriate for her to do in the circumstances) on terms which are not substantially less favourable to her than if she had continued to be employed in her previous role.
The final bullet point is the one which usually generates most surprise amongst clients when I advise them on this point. An employer is not obliged to create a vacancy but if a vacancy exists and it is suitable alternative employment then the pregnant employee has the right to be offered that vacancy without any competitive interview even if there are other employees (who are not on maternity leave) whose position is at risk and who could also do the job. This is an example of positive discrimination and if an employer fails to do this then they may well face a claim for both unfair dismissal and sex discrimination.
ACAS explains that pregnant employees and those on maternity leave can be fairly selected for redundancy, provided that there is a genuine redundancy situation, employees are consulted about the proposed redundancies, objective and measurable selection criteria are used, a fair process is followed and suitable alternative vacancies are offered where appropriate.
Crucially, the employee’s pregnancy or maternity leave should not, at any stage, be either directly or indirectly determinative of selection for redundancy. For example, a sickness absence record showing an increased absence rate for pregnancy-related reasons should not be taken into consideration (or at least the pregnancy-related absences should be discounted) as part of the selection criteria.
The guide ends with an excellent “Myth Busting” section, which tackles some common preconceptions about the combination of redundancy, pregnancy and maternity leave and is well worth a read.
The full guide can be found here and is a good starting point should your business find itself in this position. However, as this is a very difficult area of employment law I would always recommend seeking tailored advice before commencing a redundancy process involving a pregnant employee or an employee on maternity leave.