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We had an employee start working for my company last year. We were going to get rid of her as she was unsuitable. However, before we could do this in she announced she was pregnant and has been off ever since firstly with pregnancy-related sickness and then maternity leave. She is due back soon. However, now we only have enough work for the two employees already in her area who are very good at their jobs. We have no alternative employment to offer her. I understand about redundancy procedures, but how can we possibly compare her performance with the current employees as she won’t have worked for us for 14 months and we know the current employees are much better than she was. I feel she will claim discrimination if we make her redundant. Is there anything I can do?
I understand that you have an employee on Maternity Leave who is due to return to work soon. You now only have enough work for two employees in her area who you believe to be stronger candidate.
If a redundancy situation arises and it is not practicable for the employee on maternity leave to continue under her existing contract, she is entitled to be offered a suitable alternative vacancy where one is available. If the two employees currently working in her area are doing the same job as the one on maternity leave then a redundancy process should be followed whereby they are all put at risk. You must be careful that any selection criteria does not put the employee on leave at a disadvantage due to the fact that she is on leave. The employee on maternity leave would have priority for alternative employment in the case of a redundancy process.
Practically speaking, legislation only protects an employee during her pregnancy and until the end of her leave. In order to avoid a claim for discrimination it may be wise to leave a redundancy process until three months after she had returned to work, as the protection would not continue to cover her once her maternity leave has ended, and any claim to an employment tribunal must be brought within three months of the date of the act complained of. If she was made redundant three months after returning to work she would be unable to link the claim to her maternity leave.
I would advise you to consider the ACAS guidance on Managing redundancy for pregnant employees or those on maternity leave, available here.