A redundancy situation is where there is either a closure of a business (or particular workplace) or a reduced need for employees to do work of a particular kind. This might cover:
- Where there is no need for a particular job because, for example, of a reorganisation.
- A need for job cuts because of the employer’s financial situation.
- A reduction in work or clients, so there is less work to do.
- A reorganisation due to having too many employees doing the same work.
If your role is made redundant during maternity leave, you must be given the first option on any suitable alternative work that is available. You must be considered before any other redundant employee. If you find out on return to work that your job was redundant during your maternity leave you should remind your employer of your right to be offered any suitable alternative vacancy.
If your job becomes redundant during maternity leave you are entitled to be offered any suitable alternative vacancy. Failure to do so doesn’t automatically count as maternity discrimination. Instead, you would have to show that you were not offered the suitable alternative vacancy because you took maternity leave. For example, it would not be maternity discrimination if the reason you were not offered the vacancy was a genuine clerical error on the employer’s behalf.
Yes, provided that:
- There is a genuine redundancy situation, which is not caused by the fact you have been on maternity leave.
- You are properly consulted; you must not have been left out of the consultation process because you were on maternity leave.
- You are not chosen for redundancy because you were on
- maternity leave or for a reason relating to your leave.
- The selection criteria and how they are assessed do not
- disadvantage you because of your maternity leave.
- If the decision to make you redundant is made during your maternity leave, the selection criteria and how they are assessed also should not disadvantage you because of your pregnancy or pregnancy related illness.
- Your employer has properly considered whether there is a suitable alternative job for you. If your role was made redundant while you were on maternity leave you must be given first option on any suitable alternative work that is available.
Employees on fixed-term contracts have similar maternity and employment protection rights to permanent employees. If your fixed-term contract is not renewed, this is treated as a dismissal. If this occurs because of maternity leave this would be maternity discrimination. If you are made redundant, you should be offered suitable alternative work like permanent employees.
Yes. The Equality and Human Rights Commission and ACAS have produced guidance for employers and employees on managing redundancies for pregnant employees and those on maternity leave.
If you can show that there is not a genuine redundancy situation and you are being made redundant because of your maternity leave, this would be maternity discrimination. You should appeal against your redundancy.
Yes. Your employer must consult you at the same time as other employees if you are on maternity leave. Your manager or Human Resources may consult you in a telephone call or visit you at home. You must be given the same information as other employees.
Your employer should consult you about:
- Reasons for redundancy and the posts affected.
- Considering alternatives to redundancy, such as voluntary redundancies, or reduced working hours.
- The selection criteria for those employees at risk of redundancy.
- How the redundancy selection assessment was carried out.
- Any suitable alternative work.
You must be given the same access to information about suitable alternative work as other employees. If you are not told about a suitable alternative job because you are on maternity leave, this may be maternity discrimination.
Your employer should decide which employees are doing sufficiently similar work and put them in a redundancy pool to be considered for redundancy. The selection process to decide who is to be made redundant should be transparent, known by everyone it applies to and non-discriminatory. The selection criteria should be objective and measurable. Typical criteria include:
- individual skills, qualifications
- performance or aptitude for work
- attendance and absence record
- disciplinary record, and
- customer feedback.
You should not be disadvantaged by your pregnancy, pregnancy related illness or for taking maternity leave. For example:
- If sickness absence is taken into account, any pregnancy related absence should be ignored.
- Your performance should not be marked down because of pregnancy related sickness.
- You should not be marked down against any assessment criteria because you have few clients or customers because of your maternity leave.
You must not be disadvantaged because of your maternity leave. If you score less well against the redundancy criteria because they are based on performance while you were on maternity leave, then this is likely to be maternity discrimination.
If you believe the redundancy selection criteria are discriminatory, you should explain to your employer why the criteria disadvantages you because of your pregnancy, pregnancy related sickness or maternity leave. Your employer must adjust the criteria or the way you are scored against them to remove that ensure you are not disadvantaged.
No. If you are not offered a suitable alternative job because you cannot start it for a few months because of your maternity leave, this would be maternity discrimination.
Yes. If it is clear that your role is redundant during your maternity leave you are entitled to be offered a suitable alternative vacancy. If other employees are made redundant, you should get preference over them.
Not necessarily. If you only become at risk after you have returned to work, you should be treated in the same way as other employees and will not have priority over any suitable alternative job. However, if you are not offered a suitable job for a reason related to your maternity leave, this may be maternity discrimination.
No, you should not have to apply for suitable alternative jobs. Your employer must identify a suitable alternative job and offer it to you without you having to apply for it.
The alternative job must be suitable and appropriate for you in the circumstances. This means it must be no less favourable than your previous job in relation to location, terms, conditions and status.
If you are offered a suitable alternative job, which you decide without good reason not to take and you are made redundant, your employer can refuse to pay you redundancy pay.
If you are offered a job at a different location and this means additional childcare and travelling problems, it may not be suitable. This means you could reject the job and would be entitled to a redundancy payment.
It is advisable to ask the reason why you may be made redundant, to see if you can put forward reasons why you should not be made redundant. You could ask questions covering:
- Why is there a redundancy situation?
- Whether other employees are at risk; if there have been a lot of redundancies your employer is more likely to be able to show that the redundancies are genuine.
- If you are the only employee, why you were selected and what consideration was given to putting other employees at risk of redundancy.
- When your employer first considered there was a redundancy situation.
- Who was in the selection pool?
- What were the selection criteria and how were they measured?
- What was your score, how was it assessed and how did it compare to others put at risk?
- Whether any employees (at risk of redundancy) have been offered alternative jobs, with details of the jobs. If any of the jobs would have been suitable for you, ask if you were considered and, if not, why not.
You should not be treated unfavourably because you have been on maternity leave. This would include not being excluded from meetings you would otherwise have attended. You should raise any concerns you have with your manager. Ask why you were not included in the meeting-there may be a good reason, which has nothing to do with your maternity leave or it may have been an oversight. If the decision to exclude you was made for a reason relating to your maternity leave then this could be maternity discrimination.
You should not be treated unfavourably because you have been on maternity leave. This would include moving your desk to a worse position. You should raise any concerns you have with your manager or Human Resources. Ask why you have been moved and explain the impact on you. If the decision to move you was made for a reason relating to your maternity leave then this could be maternity discrimination.
You should not be treated unfavourably because you have been on maternity leave. You should raise your concerns with your manager informally and ask that you be given the same amount of work you had before your maternity leave. You could ask for your targets to be adjusted until you are given your work back and so are able to meet your targets.
If you cannot resolve this informally, you may need to put in a grievance explaining the work you did before your maternity leave and how this has changed. If this does not resolve matters you will have to decide whether to continue with your job, take a discrimination claim to the employment tribunal or resign and claim constructive dismissal.
You should not be treated unfavourably because you have been on maternity leave. You should raise your concerns with your manager informally and ask that you be given the same amount of work you had before your leave. You could ask for your targets to be adjusted until you are given your work back and so are able to meet your targets.
If you cannot resolve this informally, you may need to put in a grievance explaining the work you did before your maternity leave and how this has changed. If this does not resolve matters you will have to decide whether to continue with your job or resign and claim constructive dismissal.
If you have been discriminated against; for example, your job responsibilities have been given to another employee because of your maternity leave, you could resign and claim constructive dismissal.
Constructive dismissal is not easy to prove so if possible take advice; for example, from your union, or from a solicitor. You should not rely on getting compensation through bringing an employment tribunal claim, as you cannot be sure you will win.
Before resigning, you should explain in writing why you are planning to do this and wait for your employer to respond. You should include the main reasons why you decided to resign and the last incident, which led to your decision. It may be worth taking some advice about the exact wording, but the letter should be written by you.
If your employer has a grievance procedure, it is advisable to raise a grievance under that. If you do bring a tribunal claim, compensation may be reduced if you have not brought a grievance before taking the formal claim.
Generally, you should resign without waiting too long otherwise your employer may argue that you accepted their behaviour.
If you cannot afford to resign, you may have to wait until you have another job. If you then make an Employment Tribunal claim, you will need to satisfy the tribunal that you would have resigned earlier but could not do so for financial reasons. In the meantime, you should explain to your employer, in writing, that you object to the discriminatory treatment so it cannot be said that you accepted it.
To prove that you have been constructively dismissed you need to show that:
- Your employer behaved so badly (for example discriminating against you), that all trust and confidence has broken down between you.
- You resigned because of your employer’s behaviour.
- You did not wait too long before you resign as if you did, it may be assumed that you accepted the treatment by continuing to work.
You should give your employer notice if you are not intending to return. The notice period is set out in your contract.
This does not apply if you can show that you resigned because of your employer’s behaviour if this amounts to a serious breach of your contract, such as discriminatory treatment. If you resign in these circumstances, and claim constructive dismissal, you can resign either with notice or without giving notice.
Yes, your employer must give you notice pay and any pay instead of untaken annual leave that has built up during maternity leave.
Yes. You can write to the employer to ask why they treated you in the way they did, and ask questions to help you decide whether you might have a legal case against your employer. There is an ACAS Code which sets out the procedure for asking such questions and how an employer should respond. ACAS recommend you follow these steps:
- Provide your details and details of your employer and any employee who might have discriminated against you.
- State the reason for the treatment, for example because you were pregnant, off work with pregnancy related sickness, or were on maternity leave.
- Describe briefly the facts, which you say amounted to discrimination including the date and individuals involved.
- Say whether it was unfavourable treatment, that is pregnancy discrimination or maternity discrimination, or indirect sex discrimination.
- Say why you think the treatment was discrimination, for example you were dismissed only a week after you went on maternity leave.
- Ask questions about why you were treated as you were, for example, why you were not appointed, promoted, offered training, given a pay rise or why you were dismissed.
Your employer is not legally required to respond but if you bring a claim, a tribunal may look at whether the employer has answered questions and how they have answered them, and take that into account when making their decision on your discrimination claim.
Try to resolve matters informally first and if this does not succeed, raise your concerns formally in writing. You can:
- Speak to your union, and ask them to raise your concerns with your employer.
- Raise your concerns informally and talk to with your manager or Human Resources.
- Write to your employer to explain your concerns and setting out what you would like to happen.
- Refer your employer to the Equality and Human Rights Commission, ACAS or Maternity Action website so they can check their legal obligations to you.
- Speak to the Health and Safety Executive if you are concerned about your employer’s failure to comply with their health and safety obligations,
- Raise a formal grievance.
- Seek free advice from Maternity Action, Working Families, or a CAB.
- Ask a lawyer to write to your employer but this should be a last resort.
- Contact ACAS for early conciliation.
Yes, see https://www.gov.uk/solve-workplace-dispute/overview. This covers grievances, disciplinary action, appeals, mediation and conciliation.
Yes, you should attend a meeting with your employer to discuss your grievance, unless you cannot do so because you are ill or your baby is ill. There may be other means of having a discussion, for example over the telephone.
Yes, you should takes notes of meetings and discussions. You should also be aware that you may be allowed to take a union representative or a work colleague into meetings.
See ACAS for right to be accompanied at a grievance meeting.
If you do go to a meeting on your own, make notes of what was said either during the meeting, if possible, or immediately afterwards. If something has been agreed, write an email to your employer confirming in brief what you discussed. Then you will both have a record.
You should raise a formal grievance when you have not been able to settle things informally and you do not think that your employer will take your concerns seriously unless you follow the grievance procedure.
It is advisable to follow your employer’s grievance procedure before lodging a tribunal claim. If you are successful at the tribunal and you are awarded compensation, the amount you receive may be reduced if the tribunal decides that it was unreasonable for you not to make a grievance.
Your employer should follow the ACAS Code and guidance.
It would be unlawful victimisation to dismiss you for complaining about discrimination. However, making a complaint may lead to a deterioration in the working relationship.
It is important to work out what you want and this will influence what you do next. Depending on your circumstances you may want to:
- Remain in the same job but perhaps on a different working arrangement, such as varying or reducing your hours, or working for a different manager (if it is the manager who is causing problems).
- Move to a different job in the same organisation, subject to agreeing terms and conditions, such as pay, work, and/ or a sum of compensation.
- Remain employed for an agreed period and look for another job. It is generally easier to find a job while you already are in work than out of work.
- Negotiate an exit package, while still employed. Consider how long it will take you to get another job, your loss of earnings, pension and benefits.
- Resign, arguing that you were entitled to do so because of how you were treated, for example, if you were harassed. This would be constructive dismissal. You should take legal advice first as it is not easy to prove.
There are a number of steps you need to follow to take a claim to a tribunal. You can learn more about them by visiting www.equalityhumanrights.com.
Last updated: 12 May 2016