25 Jan 2019
In 2016 we wrote an article responding to the Equality and Human Rights Commission’s finding that 54,000 women a year were forced out of their job because of pregnancy discrimination and that one in five mothers experienced harassment and negative comments because of their pregnancy. The Government was being urged by the Commission to change the law to give new and expected mothers additional protection from pregnancy discrimination.
Employers should be aware that if an employee is made redundant because they are on maternity leave or pregnant, then any dismissal will be pregnancy and maternity discrimination which is unlawful under the Equality Act. It is also likely to be automatically unfair dismissal. Even if there is a genuine redundancy situation, it may also be pregnancy and maternity discrimination if the employer uses selection criteria that are discriminatory. For example, if sickness absence is a criterion and pregnancy related sickness absence is taken into account as part of the employee’s attendance record.
On 24 January 2019, the Government responded to these issues by announcing the intention to provide greater protection to women returning to work from maternity leave from redundancy. The initial indications are that women will have extended legal protection against redundancy for 6 months after they return to work. It is also possible that these protections could be extended to men who return from adoption or shared parental leave.
It is perhaps a misconception that women on maternity leave cannot legally be made redundant. Potentially, an employer can fairly select a female employee who is pregnant and/or on maternity leave for redundancy, provided the fact of pregnancy and/or maternity leave does not in any way influence the decision to select that employee for redundancy. However, if a woman on maternity leave is selected for redundancy, they have an enhanced right to be appointed to a suitable alternative job (if one exists) before it is offered to any other employee. Is there is a suitable alternative job, a woman on maternity leave should not have to apply for it, or be interviewed for it, and they must be offered it even if they are not the best candidate.
However, the right falls away once the employee returns to work from maternity leave. We anticipate that the Government’s proposals will extend the right to be offered a suitable alternative job to women who return to work after maternity leave and who are made redundant in the six months’ period following maternity leave.
Even though there are a substantial number of employees who appear to be being treated less favourably because of maternity/pregnancy, very few of these cases are litigated. There are a significant number of deterrents which may cause new and expectant mothers to shy away from bringing a claim. Firstly, they may be in low paid roles and it is simply not economic to engage legal assistance. Understandably, many new mothers may be focused on other issues rather than investigating complex and potentially costly litigation. Finally, in Employment Tribunals, normally the parties have to pay their own costs to an Employment Tribunal which can deter potential claimants. We do not anticipate that the Government will seek to address these barriers to employees bringing a claim.
If you have found yourself the victim of pregnancy or maternity discrimination, or you are just looking for advice – then please get in touch with us today to arrange a consultation.
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