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Sex, pregnancy and maternity discrimination
[ch 11: pages 404-406]It is automatically unfair to dismiss an employee or select her for redundancy because of pregnancy, childbirth, maternity, or because she takes or asks to take maternity leave (section 99, ERA 96, regulation 20, Maternity and Parental Leave Regulations 1999 (MAPLR)). Equivalent protection is available to employees absent from work on adoption leave and shared parental leave (see Chapter 9).
Employers must consult adequately with women at risk of redundancy throughout maternity leave. Failure to do this can result in maternity discrimination (Blundell v Governing Body of St Andrews Catholic Primary School [2007] UKEAT/0329/06/1005). However, the EAT has ruled that there will only be discrimination if the employer was motivated (consciously or sub-consciously) not to communicate with the woman by the fact that she was on maternity leave (Indigo Design & Build v Martinez [2014] UKEAT/0020/14/0007).
A woman on maternity leave was at risk of redundancy. A form asking for her redeployment preferences was accidentally sent to her work email address which she could not access because she was on leave. This was a detriment, said the EAT. However, there was no maternity discrimination because the reason why the email was sent to her work address had nothing to do with her being on maternity leave. Instead, it was a simple administrative error.
South West Yorkshire Partnership NHS Foundation Trust v Jackson [2019] UKEAT/0090/18/BA
Dismissing a woman because the employer discovers, as a result of her absence on maternity leave, that they can “manage without her” by sharing out her tasks among other team members is likely to be automatically unfair:
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 discovering during a woman’s absence on maternity leave that fewer employees are needed to carry out work creates a genuine redundancy situation. However, if several employees all carry out similar tasks, then 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
Men cannot claim sex discrimination in redundancy selection if an employer gives special treatment to women in connection with pregnancy or childbirth (section 13(6)(b), EA 10), as long as that special treatment goes no further than reasonably necessary and proportionate to remove any disadvantage linked to pregnancy and maternity, taking into account the interests of other employees:
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. More reasonable and proportionate methods would have eliminated the disadvantage to the woman without unreasonably harming 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 man 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 a suitable available vacancy. See page 411.