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Selection for redundancy during maternity leave
[ch 11: pages 390-392]There are strict statutory rules in place 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 if the same circumstances apply equally to other employees doing similar jobs who are not selected for redundancy, where the reason for selecting the employee for redundancy is connected with pregnancy, childbirth or taking maternity leave.
The basic intention here is to protect women whose employers discover, while the woman is away on maternity leave, that they can “manage without them”, as in the following 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 she did. 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, if several employees all carry out similar tasks, selecting for redundancy the one who is on maternity leave will result in an automatically unfair dismissal.
SG Petch v English-Stewart [2012] UKEAT 0213/12/3310
Equivalent protection is available to employees absent from work on adoption leave and shared parental leave (see Chapter 9).
It is sex discrimination to use redundancy selection methods that put those who have taken (or are taking) parental leave at a disadvantage compared with those who have not (Reizniece v Zemkopibas Ministrija [2013] ICR 1096).
Men cannot claim sex discrimination if an employer gives special treatment to women in connection with pregnancy or childbirth (section 13(6)(b), EA 10). However, that special treatment must go no further than is reasonably necessary and proportionate to remove any disadvantage linked to pregnancy and maternity, 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. For the maternity leave period, the employer gave the woman a notional score of 100%, whereas 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 man. The employer should have adopted more reasonable and proportionate methods which would have eliminated the disadvantage suffered by the woman without unreasonably harming the interests of the man. For example, both employees could have been awarded a notional score, or the employer could have measured a different performance period. Both options had been suggested by the male employee during consultation. Failure to consider them led directly to his selection for redundancy and amounted to direct sex discrimination.
Eversheds Legal Services Limited v de Belin [2011] UKEAT 0352 /10/JOJ
Men and women at risk of redundancy during maternity, adoption or shared parental leave have enhanced statutory rights to be offered alternative employment. These rights are explained on page 398.
Pregnancy discrimination in redundancy endemic in UK workplaces
Equality and Human Rights Commission (EHRC) research in 2015-16 revealed that around 54,000 women each year feel forced to leave their job each year, through dismissal, compulsory or voluntary redundancy, or because they felt so badly treated that they had to leave. Nearly one in three employers objected to the enhanced legal protection from redundancy during maternity leave.
However despite growing pressure from campaigners for the law to be strengthened, the government has committed only to "keep existing protections under review" (see Taylor review, page 33).
In November 2017, Acas launched new guidance on preventing pregnancy and maternity discrimination at work, available from its website. The ECHR in turn has launched its “Working Forward Pledge” campaign, to support pregnant women and working parents and has updated its research with even more shocking survey findings, published in February 2018, concluding that when it comes to pregnancy protection at work, “UK employers are living in the dark ages”. The findings are available on the EHRC website.
www.acas.org.uk/media/pdf/0/t/Pregnancy___Maternity_Discrimination.pdf