UK: Discrimination Diaries: Redundancy And Maternity Leave

Last Updated: 13 September 2019
Article by Katie Harris

Our discrimination expert, Senior Solicitor Katie Harris, answers your questions on difficult discrimination issues in employment. Names and circumstances have been changes to protect the identities of those involved.

This week, Katie looks at redundancy and maternity leave.

Question

I have been working for my employer for six years as a marketing assistant. We are a small company and it is only me, another marketing assistant and the marketing manager in the team.

Eight months ago, I was given a pay rise, in recognition of my hard work and for consistently exceeding my monthly targets. This year is set to be the strongest financial year yet, because as a department, we have exceeded our annual target by 12%.

I found out I was expecting my first baby shortly after the pay rise. I advised my employer I was pregnant on 1st February. My line manager congratulated me and seemed pleased for me. However, later on in the day I overheard her in the staff room saying she was concerned about how this would affect the responsibilities expected from me and made a comment about my recent pay rise.

I am now on maternity leave. Last week, I was called in to the office and attended a meeting with HR, where I was told that my role is at risk of redundancy due to a companywide internal restructure. I was told that the need for two marketing assistants will no longer be required as a lot of the work I am responsible for is going to be given to the marketing manager. I was informed that, as a result of the restructure, there will be four roles being made redundant, including one marketing assistant. I was told that at this time, there are not any suitable alternative vacancies for me within the company but if one does come up, I will be invited to apply for it.

I have now received written confirmation that I have been made redundant. The other marketing assistant is still working. She has only worked for the company for eighteen months.

I am concerned about why my role has been made redundant when the company is going from strength to strength, and why it was me who was made redundant. I have never been subjected to a disciplinary and I have consistently hit all targets.

It feels like I have been made redundant because I am pregnant. I am most concerned about how this effects my rights and maternity pay. Is there anything I can do about this? What are my rights if my employer decides to make me redundant?

Answer

Protection when on maternity leave

While on maternity leave, you have the following rights and protections that are relevant to this situation:

  • The right not to be unfairly dismissed, or dismissed or selected for redundancy for a reason connected to your pregnancy or maternity leave;
  • Not to be treated unfavourably for a reason connected to your pregnancy or maternity leave;
  • Not to be harassed on the grounds of your sex; and
  • If fairly selected for redundancy, the right to be offered a suitable alternative role if one is available.

Applying these to your situation:-

The decision to make you redundant:

Redundancy is a potentially fair reason for dismissal, even when you are on maternity leave. Therefore, the first thing to ascertain is whether there is a 'genuine redundancy situation'. This will arise in the following three situations:

  1. When the business closes down temporarily or permanently
  2. When the business moves and you cannot get to the new place of work
  3. When fewer employees are required for a particular type of work.

Your employer is entitled to restructure their business as they see fit, and it is often difficult to prove whether there is a genuine redundancy situation or not.

However, the burden is on your employer to establish the genuine reason for your dismissal. If you are the only one selected for redundancy, or your employer is unable to demonstrate that any of the three situations above apply, then it may struggle to do this.

In these circumstances, you have an argument that you are being dismissed not because of redundancy, but because of your maternity leave, or a reason related to it (such as your absence). The fact that the other marketing assistant was not placed at risk of redundancy and remains employed, and the comments made by your manager when you told her you were pregnant, are factors pointing toward this, which your employer will need to explain.

The Redundancy Process:

Although it shouldn't happen, it's not uncommon for employees on maternity leave to be 'forgotten about' and kept 'out of the loop'. If your employer fails to properly engage you in the process because you are out of the office, then this could be 'unfavourable treatment' for a reason related to your maternity leave.

As you were one of two people undertaking the same type of work, your employer must use a fair selection criteria to decide which person to place at risk of redundancy. It must not automatically choose you because you are on maternity leave.

In order to be fair, selection criteria should be objective and capable of measurement. Common examples include performance and attendance records. However, you shouldn't be placed at a disadvantage because you have taken maternity leave. For example, any absence related to your pregnancy or maternity leave should be disregarded when scoring you against the criteria.

As a matter of best practice, your employer should consult with you about your selection, and consider alternatives to dismissing you such as ways of avoiding redundancy and alternative roles. You should also be given an opportunity to comment on the selection criteria used and your scores. If you have not been provided with a copy of this information, then you should ask to see it.

If you have been selected for redundancy because of your maternity leave, scored poorly because you have been placed at a disadvantage in the selection process as a consequence of your maternity leave and/or your employer has failed to provide you with information about the selection criteria and your scoring, you may have a claim that you have been automatically unfairly dismissed and/or discriminated against.

Alternative Roles within the Company:

If you are selected for redundancy while you are on maternity leave, your employer is legally obliged to offer you a suitable alternative vacancy, if one exists. You should not be expected to interview for any roles because you must be given priority over other workers who are being made redundant, who are not on maternity leave.

If your employer fails to offer you a suitable alternative role, or subjects you to a competitive interview process, then your dismissal is likely to be automatically unfair and discriminatory.

Harassment

You have the right not to be subject to unwanted conduct related to your sex that is intimidating or humiliating for you or that creates a hostile environment for you. The comments made by your manager when you first informed her of your pregnancy might amount to harassment on the grounds of your sex (because they concerned your pregnancy) if you can show that they caused you upset or distress.

However, in order to pursue this, you would need to issue a claim within three months' from the date when these comments were made, so it is likely this claim may now be out of time.

Your rights with regards to Maternity Pay

If you are dismissed during your maternity leave, the leave will come to an end. However, your employer must continue to pay your statutory maternity pay ('SMP') for the remainder of the SMP period (or until some other disqualifying event such as you obtaining a new job). This is because SMP entitlement, once triggered, is not dependent on remaining an employee after the Qualifying Week. The Qualifying Week is the 15th week before the baby's due date.

The position is less clear in relation to any contractual maternity pay you receive – this will depend on the terms of your contract and any relevant scheme rules. Normally, this will end when your employment terminates. However, you will continue to receive SMP as set out above.

You will also be entitled to a redundancy payment. Your employer may offer you a contractual redundancy payment or the statutory redundancy. You should check with your employer regarding this.

Obviously, if your dismissal has been unfair or discriminatory in anyway then you are entitled to compensation for losses you suffer as a consequence which will include loss of any contractual maternity pay, loss of future earnings and an injury to feelings award.

Summary and next steps

The reasons why there may be a claim you could potentially bring against your employer are:

  • There is no genuine redundancy situation
  • You were selected for redundancy because you are pregnant/on maternity leave
  • You were not offered a suitable alternative vacancy

There are strict time guidelines for making claims in an employment tribunal. You will need to submit your claim to a tribunal within 3 months from the date of the dismissal or the discrimination. Therefore, I would suggest that you obtain full legal advice in order to be advised of the full merits of your claims as soon as possible.

You should also consider appealing your employer's decision to select you for redundancy (if you have been given a right of appeal) and/or raise a formal grievance following your employer's internal grievance process. If you unreasonably fail to do this, it can result in a reduction in any compensation awarded to you if you were to succeed with a claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions