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Redundancy for pregnant employees and those on maternity leave - Some questions...

19 July 2012 #Employment


  1. Can I make a pregnant employee or an employee on maternity leave redundant?
  2. When looking at selection criteria, do I have to ignore all the negatives associated with an employee because she is pregnant or on maternity leave?
  3. Do I have to prejudice others in a redundancy process because another employee in the pool is pregnant or on maternity leave?
  4. Does an employee on maternity leave have to apply for a suitable alternative position or should she automatically be offered it?
  5. Is special provision for a women in connection with pregnancy or childbirth sex discrimination against a man?
  6. If I find that I can manage the workload of an employee who is absent on maternity leave between other employees, is this a valid reason to make her redundant?  

ACAS has been working with the Equality and Human Rights Commission to help employers answer questions like this and has issued new guidance on how to manage the redundancies of pregnant employees or those on maternity leave. People Management has reported ACAS as recording 15,000 calls a year to its help line from employers and employees tackling this issue.  The Ministry of Justice figures recorded 1,900 Tribunal claims in 2011/2012 in which pregnant women or new mothers claimed unfair dismissal or discrimination after being made redundant.

In a nutshell, although there is some preferential consideration afforded to women who are pregnant or on maternity leave to ensure that they are not disadvantaged as a result of the pregnant or maternity leave, others in the redundancy process should not be unduly prejudiced as a result.  The recent hot topic here relates to selection criteria.  An employer must ensure that selection criteria is non-discriminatory but it need do no more than is reasonable to achieve this.  For example, it should not be necessary to simply afford an employee who is pregnant or on maternity leave a blanket maximum assessment on scoring criteria – other options to make the score non-discriminatory can be considered, e.g. using a longer assessment period which covers when she was at work, using last year’s appraisal, discounting maternity/ pregnancy absence only. 

The new guidance ‘Managing redundancy for pregnancy employees or those on maternity leave’ encourages employers to ask 4 main questions when considering whether to make a post redundant:

  1. Is the redundancy genuine?
  2. How do I consult with employees on maternity leave?
  3. How do I decide selection criteria?
  4. Is there a suitable alternative?
  5. These four questions are vital for any redundancy situation and employers should not fear being discriminatory simply because an employee is pregnant or on maternity leave.  There is also a useful checklist in the guidance which assists with managing the process fairly.

For more information on this issue, please see page 17 of Employmentbuddy’s Redundancy Guidance Notes.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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