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Bye Bye Baby: Redundancy & maternity leave
There is often a lot of confusion about the rights of women on maternity leave when redundancy comes around. Women on maternity leave can still be made redundant, but if the employer gets it wrong they may have a claim for unfair dismissal and pregnancy/maternity discrimination if the employer:
- takes into account as part of the selection criteria the fact that the employee has given birth or is on maternity leave; or
- if the employer has failed to consult the employee who happens to be away on maternity leave.
In addition, under the Maternity and Parental Leave etc Regulations, where a suitable available vacancy exists within the employer (or an associated employer), the employer must offer that position to the female employee on maternity leave in preference to any other redundant employee. What is or is not a ‘suitable’ alternative position will always be subject to debate.
However, it is important to remember that the Regulations do not mean that women on maternity leave must be treated more favourably than their colleagues in a redundancy selection process. In Eversheds Legal Services Ltd v De Belin in the EAT, the employer inflated the score of a female employee who was absent on maternity leave and this was found to be sex discrimination against her male colleague. The employer had awarded the female employee the maximum score available and the EAT said that the more proportionate means would have been to measure both employees’ performance prior to the female employee going on maternity leave.
Perhaps to recognise that this area is fraught with difficulty, Acas in partnership with the Equality Human Rights Commission have published a new guide for employers entitled: Managing redundancy for pregnant employees or those on maternity leave (Click on: Guide for Employers). The guide provides an overview of the law in this area. In particular, it provides advice and guidance in relation to the following questions: Is the redundancy genuine? How do I consult employees on maternity leave? How do I decide the right selection criteria? Is there a suitable alternative vacancy?
Hopefully, this guide will assist employers in minimising the risk of claims from employees following a redundancy exercise.
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