Sex discrimination

It is sex discrimination not to consult adequately with a woman absent on maternity leave (Blundell v Governing Body of St Andrews Catholic Primary School [2007] UKEAT 0329/06/1005). Special arrangements must be made to ensure proper consultation with an employee on maternity leave. For example, she may not have regular access to work intranet or email, and may not be based at the home address. The same applies to men and women on adoption or additional paternity leave.

In practice, employees going on leave should set up clear agreed communication mechanisms, including access to internal jobs via the intranet and should check in regularly with the workplace. Even though an employee on maternity, adoption or additional paternity leave has special protection if made redundant while on leave, there are limits to that protection (see chapter 6 for more detail). It is important to keep in close touch with the employer and to confirm interest in any vacancies.

Under section 99 of the ERA 96, selection for redundancy is automatically unfair if it is based on pregnancy, childbirth, maternity, or the taking or requesting of maternity leave, adoption leave, parental leave, paternity leave, additional paternity leave or emergency dependency leave (section 57A ERA 96). It is also likely to be sex discrimination.

The European Court in Reizniece v Zemkopibas Ministrija [2013] C-7/12, established that it is sex discrimination to use selection methods, or a selection process that places those who have taken (or are on) parental leave, in a less favourable position than those who have not. The European Court said that where an employee has been on parental leave in the period leading up to any assessment date used for redundancy selection, it is not sex discrimination to use a different assessment period for that worker looking at their most recent period of work, as long as this does not mean treating them less favourably. Employers must use identical criteria to judge those on parental leave and those present at work, and the case suggests that employers should not use selection methods that require the physical presence of employees (of both sexes) on parental leave.