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Selection for redundancy during maternity leave
[ch 11: pages 421-422]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 relates to pregnancy, childbirth or taking maternity leave. Here is a good 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 place those who have taken (or are taking) parental leave in a less favourable position than 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 eliminate any disadvantage to the absent employee 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 of a key criterion over a period that included the woman’s maternity leave. For the maternity leave period, her 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 male employee. The employer should have adopted more reasonable and proportionate methods which would have eliminated 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 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 426.
Equality and Human Rights Commission uncovers shocking levels of pregnancy discrimination
Equality and Human Rights Commission (EHRC) research in 2015-16 has 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 surveyed objected to the laws providing enhanced protection from redundancy during maternity leave.
Responding to the EHRC research, a 2016 House of Commons Women and Equalities Committee Report highlighted weak redundancy protection for new and expectant mothers and recommended a change to the law within the next two years. The Committee wants the UK to move to a system similar to that used in Germany, where new and expectant mothers can be made redundant only in specified circumstances. This protection should apply during pregnancy and maternity leave and for six months afterwards, suggested the Committee.
In its response, published in January 2017, the government has agreed to “consult on options to ensure new and expectant mothers in work have sufficient protections from redundancy”.