Employment lawyer Gemma Bailey discusses employee’s rights when pregnant or on maternity leave.
Redundancy exercises are expected to rise over the coming months and we are certainly noticing at Howells a surge in new clients asking us for advice on settlement agreements after they have applied for voluntary redundancy packages before a formal consultation starts.
Here are our top three things to look out for if you are in a redundancy consultation and also pregnant, on maternity leave or recently returned from maternity leave.
Pregnancy and maternity is a protected characteristic under the Equality Act 2010 and protects women from various types of discrimination. As part of a fair redundancy process, your employer must explain their rationale for the roles they will be removing and, where there are a number of employees undertaking the roles at risk, decide how they will choose the candidates for redundancy.
If pregnancy or maternity were used as the reason for selection then this would amount to “unfavourable treatment” and could be unlawful discrimination. Similarly, if the criteria appears to apply equally to everyone, but (for example) places women who have been absent from work on maternity leave at a particular disadvantage then it could potentially be “indirect discrimination”.
If your role is placed at risk of redundancy and you are on maternity leave, your employer should take steps to make sure that you have the opportunity to be kept abreast of the information delivered during the consultation process and you are able to take part, feeding back your comments and attending consultation meetings. Failure to do so could render a subsequent termination both unfair, and the failure to include you in the consultation process could amount to sex discrimination and/or pregnancy and maternity discrimination.
If your role is made redundant while on ordinary or additional maternity leave but there are suitable alternative vacancies available which might save your employment, you are entitled to be offered (before termination of employment) that alternative employment. This puts a special layer of protection over those on maternity leave, giving them priority over their colleagues for suitable alternative employment under regulation 10 of the Maternity and Parental Leave etc. Regulations 1999.
*This information is intended for general information purposes only and should not be used as a substitute for professional advice. Howells Legal Limited accept no responsibility for any direct or indirect result arising from any reliance placed on it, including any loss.
**Gemma Bailey is the Head of Howells’ Employment Department. To read more about employment rights click here. If you have an employment law question for workingmums.co.uk’s panel of experts, please email firstname.lastname@example.org.