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Selection for redundancy during maternity leave
[ch 11: pages 348-349]There are strict statutory rules in place that are designed to protect employees from redundancy during maternity leave. Under Regulation 20 of the Maternity and Parental Leave Regulations 1999, it is automatically unfair to select an employee for redundancy where a redundancy situation arises during maternity leave, where the circumstances of the redundancy apply equally to other employees doing similar jobs who are not selected for redundancy and where the reason for selecting the employee for redundancy relates to pregnancy, childbirth or taking maternity leave.
Here is an example:
Ms English-Stewart was made redundant after her employer “discovered” during her maternity leave that it could “manage without her” by sharing out her tasks among colleagues who carried out broadly the same tasks as her. The EAT said that where an employer discovers during someone’s maternity leave that it needs fewer employees to carry out work, there will be a genuine redundancy situation. However, where, as here, several employees carry out similar tasks, selecting for redundancy the person who is absent on maternity leave will result in an automatically unfair dismissal.
SG Petch v English-Stewart [2012] UKEAT 0213/12/3310
The same protection is available to employees who are absent from work on maternity leave, adoption leave, additional paternity leave and (for babies born on or after 5 April 2015), shared parental leave (see Chapter 8).
It is sex discrimination to choose redundancy selection methods that place those who have taken (or are on) parental leave in a less favourable position than those who have not (Reizniece v Zemkopibas Ministrija [2013] C-7/12).
Any adjustments to the redundancy selection process to compensate for the disadvantages suffered by an employee absent on leave must be no more than are ”necessary and proportionate” to eliminate that disadvantage, taking into account the interests of other employees, male and female. This was established in the following important case:
A man and a woman were both at risk of redundancy. The employer used selection criteria that measured performance over a period that included the woman’s maternity leave. Since was on maternity leave her employer gave her a notional score of 100%. The man was given his actual score. As a result, the man was selected for redundancy instead of the woman. The EAT ruled that this was sex discrimination against the male employee. The employer should have adopted more reasonable and proportionate methods to eliminate the disadvantage suffered by the woman while on leave, without unreasonably harming the interests of the man.
For example, both employees could have been awarded a notional score, or the employer could have looked at a different performance period instead of the period covered by the maternity leave. Both options had been suggested by the male employee during consultation. Failure to consider them led directly to the selection of the man for redundancy and amounted to direct sex discrimination.
Eversheds Legal Services Limited v de Belin [2011] UKEAT 0352
Men and women at risk of redundancy when on maternity, adoption, additional paternity leave and (for babies born or matched for adoption on or after 5 April 2015), shared parental leave also have special protection in relation to the obligation to offer alternative employment. The rules are found in Regulation 10 of the Maternity and Parental Leave Regulations 1999, and explained on page 356: Enhanced duty to offer alternative employment.