With the economy still in difficulty, the number of redundancies continues to increase and one particularly difficult area for employers is how to deal with pregnant workers.
Selecting an employee for redundancy on the grounds of pregnancy or maternity leave is not only automatically unfair but also constitutes sex discrimination. However, while an employer can legitimately put at risk of redundancy pregnant employees or those on maternity leave, care must be taken to ensure that the selection criteria does not have the effect of indirectly discriminating against pregnant employees. For example, if employees are being measured on the profits they generate, pregnant women should not be prejudiced by their absence on maternity leave.
It can often be difficult to consult with staff on maternity leave but failure to do so will be sex discrimination. It may be necessary to visit the employee at home and all communications, including emails and notes of meetings about the redundancy process, should be sent to her. Keeping in touch days can give employers a good opportunity to consult with employees on maternity leave.
Staff on maternity leave are allowed to queue-jump when the employer is considering suitable alternative employment and they must be offered any suitable posts that are available - regardless of whether there is a better qualified candidate. This arguably covers all available posts and not just those the employer would prefer the employee to take up. If there is a suitable vacancy and this is not offered to the employee, this will amount to unfair dismissal and sex discrimination. It will be irrelevant whether the decision not to offer the role was reasonable or not.
Where an employer is carrying out a reorganisation, employees on ordinary maternity leave have the right to return to the same job and those returning from additional maternity leave are entitled to return to a job that is suitable and appropriate in the circumstances. Therefore when carrying out such a reorganisation, employers need to be careful about changing the nature or scope of an employee's job, especially where it is quite narrowly defined in the contract of employment. Employers should, where possible, wait until the employee returns from maternity leave and readjusted to work before making those changes.
