HR expert warns of discriminatory use of redundancy due to Covid childcare problems

Kate Palmer from HR experts Peninsula says making an employee redundant because they lack childcare as a result of the coronavirus pandemic could be discriminatory.

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A large survey by Pregnant Then Screwed published this weekend found 46% of working mums who have been made redundant or expect to be made redundant during the coronavirus pandemic have said that a lack of childcare provision played a role in their redundancy.

However, is it legal for employers to make a person redundant because they have no childcare in the current circumstances? HR expert Kate Palmer from Peninsula UK says it is potentially discriminatory.

She said: “Redundancy is a specific type of dismissal which means that there is no need for the employee’s role to be performed any longer. It is dictated by the company’s circumstances rather than the employee’s individual circumstances, which means that a lack of childcare is not a pre-cursor to a redundancy dismissal. Any dismissal based purely on the fact that a female employee cannot find childcare, especially against the backdrop of coronavirus and the social distancing restrictions, is likely to be indirectly discriminatory.”

Find ways to make it work

She said employers faced with an employee who cannot work due to lack of childcare availability as a result of coronavirus should explore ways that the employee’s absence can be covered. That might include unpaid parental leave. However, she said parental leave is an entitlement to be instigated by the employee rather than enforced by the employer so employers who threaten employees with redundancy if they will not take unpaid parental leave “risk breaching the implied term of trust and confidence in the employment relationship” and are likely to be in danger of being sued for discrimination.

When it comes to workers on zero hours and other unstable contracts, Palmer said these are still protected against discrimination and so detrimental treatment purely because of childcare issues could be discriminatory. However, she said the nature of the contract could be pivotal and that employers may legally seek to reduce an employees’ hours if they are unable to accept work when it is offered.

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