Q: Can we make a pregnant employee redundant if we are retaining a non-pregnant employee doing the same job?
Paul McAleavey, Senior Associate at Girlings LLP, answers…
A: Yes, but only if the employer has a genuine redundancy situation, the pregnancy is not the reason for the employee being selected for redundancy (either directly or indirectly), a fair procedure has been followed, the pregnant employee has been selected on objective criteria (and that means not pregnancy-related criteria), the employer has properly considered its obligations under the “protected period” and looked for (and offered) suitable alternative roles.
An employee who takes maternity leave has the right to return to either the same job she left or one which is suitable for her and appropriate in the circumstances. Even if the person recruited to temporarily cover her maternity leave has outshone her, her job cannot be given to the temporary employee. Dismissing an employee because she is pregnant or has taken maternity leave is automatically unfair as well as discriminatory and creates the liability of a claim with no cap on its value as well as an award for injury to feelings.
Special treatment in employment law is rare. Most employment law is about ensuring consistent treatment of employees regardless of status or background. But the law has long recognised the difficulties mothers face in returning to the workplace and the disadvantages that they face because of having children. It is for that reason the “protected period” exists. This lasts from the day the woman becomes pregnant to when her maternity leave ends – therefore giving women a period of up to approximately 22 months in which she is entitled to special treatment.
However, a female employee generally do not benefit from protection from discrimination or dismissals on the ground of pregnancy until her employer is aware that she is pregnant. Interestingly, an Advocate-General’s recent opinion has suggested that female workers are protected from dismissal from the moment they become pregnant, even if their employer is not aware they are pregnant. This is a significant movement in favour of pregnant workers and it will be interesting to see if the European Court of Justice follows that opinion.
In the meantime, during the protected period, a pregnant employee doesn’t need a comparator to base her discrimination claim on. For example, if the pregnant employee is regularly late for work because of morning sickness during her commute, it would be pregnancy discrimination to discipline her for that, even if her employer consistently discipline all employees who exhibit poor time-keeping.
Redundancy and pregnancy
An employer should take care to ensure that a redundancy situation has arisen for a genuine reason unconnected with the employee’s pregnancy or maternity leave. The diminished “requirement of a business for employees to carry out work of a particular kind” is regularly relied on by employers to justify redundancy dismissals – but this will not justify a situation where a new employee hired to cover the employee’s maternity leave ends up outperforming the pregnant employee, leading to the pregnant employee’s dismissal.
Put simply, had the woman not become pregnant, the employer would never have discovered this. So making a pregnant employee redundant on that basis, while retaining her colleague doing the same job, is likely to be an automatically unfair dismissal as well as unlawful discrimination. Employers should consider carefully whether permitting the pregnant employee to take maternity leave may help avoid a redundancy situation – after all, the employee’s right to normal remuneration will be frozen for a period and the employer can usually reclaim most if not all of any Statutory Maternity pay paid from HMRC.
Employers should ensure that they consult properly with pregnant employees or employees on maternity leave who are at risk of redundancy. The usual obligations of discussing the reasons for the redundancy, the selection criteria, suitable alternative employment and alternatives to redundancy still apply to pregnant employees. But employers should show sensitivity and common sense. Employers should consider their duty of care to pregnant employees and do their best to ensure that the news of potential redundancy is sensitively managed.
Employers should try to agree with pregnant employees before they start maternity leave how and when they would like to be contacted, especially in those early months of maternity leave when the employee is likely to be fatigued. As a new father myself, I know how precious baby sleep time is – an employee on maternity leave will not thank her employer for waking up her baby with an unannounced telephone call.
Employers should consider sending the employee a text message and ask them to contact the office at a convenient time for a consultation meeting by telephone. The same applies to any work-related developments that happen during the employee’s maternity leave – employers should ensure that employees on maternity leave are kept up to date on these via the agreed method of communication.
If there are two employees doing the same job, an employer must select between them fairly using objective criteria. This cuts both ways and an employer should not go further than is reasonably necessary by either over-protecting or disadvantaging the pregnant employee.
For example, if attendance is used as a selection criterion to differentiate the two employees, the pregnant employee should have any pregnancy-related sickness absence held ignored for the purposes of compiling her score. However, the employer should not artificially inflate the pregnant employee’s absence record to show a perfect score if the pregnant employee has had non-pregnancy related sickness absence.
Non pregnancy-related absence can be counted for the purposes of differentiating between the two employees – but employers should tread carefully, ensuring that any absence that will count against the employee is not connected with pregnancy, bearing in mind that morning sickness in the early months of the pregnancy may merely have been understandably described by the employee as nausea and not pregnancy-related. If the pregnant employee’s scores are artificially inflated, this could lead to a claim from the non-pregnant employee.
Priority for alternative vacancies
An employee whose role becomes redundant during her maternity leave is entitled to be offered any suitable alternative vacancies available – including those available in most group companies. Provided such vacancies exist, any failure to do so will give the employee a claim for automatically unfair dismissal.
Note that the obligation is to offer the employee the suitable alternative vacancy without a competitive interview, not just invite her to apply for it. This gives the employee on maternity leave precedence over other employees who may be at risk of redundancy – a rare example of positive discrimination in employment.