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 business’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.
I need to make redundancies when a woman is due to return from maternity leave or soon after she returns. What must I do?
You must inform and consult with the employee in the same way that you do with your employees who are at work. You should not wait until she returns to work before consulting with her about a redundancy situation.
Is guidance available on how to manage employees returning from maternity leave during a redundancy situation?
Yes. ACAS and the Equality and Human Rights Commission have provided comprehensive guidance on how to manage redundancies when there are employees who are pregnant or on maternity leave. It is advisable to read this as it sets out very clearly what you need to do. See: //www.acas.org.uk/index.aspx?articleid=3832.
Another guide sets out employees’ entitlement to redundancy pay, notice and time off to find a new job. See: https://www.gov.uk/redundant-your-rights/overview.
Yes, provided that:
- There is a genuine redundancy situation which is not caused by the fact she has taken maternity leave.
- You ensure all women, who have been on maternity leave are not disadvantaged.
- You consult all employees on maternity leave in the same way as other employees. If they cannot attend a meeting at work, you should find another way of consulting them, for example by telephone, meeting nearer home or at their home (by agreement).
- The selection process, including selection criteria and their assessment, does not disadvantage an employee because of her pregnancy or maternity leave.
- If her role is made redundant during maternity leave, she is given first option on any suitable alternative work that is available. She should be considered before any other redundant employee. The onus is on you to identify a suitable alternative available position. It is not enough to tell the employee to search the intranet to look for a suitable alternative job.
What is the position if an employee is on a fixed-term contract which comes to an end during her maternity leave?
Employees on fixed-term contracts have similar maternity and employment protection rights to permanent employees. If you do not renew a fixed-term contract because of maternity leave this would be maternity discrimination. She should be offered suitable alternative work like permanent employees.
Yes. An employee on maternity leave should be consulted at the same time as all other employees. If she cannot come into work consider other ways of consulting her, by telephone or visiting her at home or meeting in a convenient place if she prefers. Failure to do so would be maternity discrimination.
It should cover:
- 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.
Employees on maternity leave must be given the same access to information about suitable alternative work as employees at work.
The selection process to decide who to make 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 avoid criteria that would disadvantage an employee because of her pregnancy, pregnancy related sickness or maternity leave, for example:
- If sickness absence is taken into account, any pregnancy related sickness absence should be ignored.
- You should not mark an employee down because she has fewer clients/ customers or has not met targets because of her maternity leave.
- An employee’s performance should not be marked down because of pregnancy related sickness or maternity leave.
It is a difficult balance working out how to remove a disadvantage from a woman on leave without giving her an advantage over a man, who might claim he has been treated less favourably. Any action you take to remove a disadvantage associated with maternity leave should not go further than necessary to remove that disadvantage.
Must I offer an employee an alternative job during a redundancy situation even if I need her to start immediately and she cannot because she is on maternity leave?
Yes. If you do not offer a woman on maternity leave a suitable alternative job because she cannot start the job immediately, this would be maternity discrimination.
See the Acas guidance on managing redundancy for pregnant employees or those on maternity leave.
The alternative job must be suitable and appropriate in the circumstances. This means it must be no worse than an employee’s previous job in relation to location, terms, conditions and status.
Can I tell an employee on maternity leave to try and find a suitable job herself and apply for it during a redundancy situation?
No, you should identify any suitable alternative job and offer it to an employee on maternity leave. An employee on maternity leave who has been selected for redundancy must be offered a suitable vacancy before any other employee. If you don’t do this, her dismissal may be automatically unfair.
What if there is more than one suitable alternative job during a redundancy situation. Must I give her the option of which one she can have?
No. The obligation is to offer her a suitable alternative job. In deciding which job to offer her you must not treat her unfavourably because she was on maternity leave, for example by offering her the most junior post available.
What is the situation if an employee refuses an offer of a suitable alternative job during a redundancy situation?
If you offer a suitable alternative job and the employee refuses the job without good reason, she loses her right to a redundancy payment.
What happens if the alternative job I offer an employee during a redundancy situation is at a different location?
If you offer an employee a job at a different location and this means additional child-care and travelling costs, it may not be suitable. This means your employee could reject the job and she would be entitled to a redundancy payment.
If there is no suitable alternative vacancy, a woman can be made redundant during her maternity leave provided the reason for redundancy is not connected with her pregnancy or maternity leave and you have followed a fair redundancy process.
Constructive dismissal is when an employee resigns because she believes you have discriminated against her or behaved in a way that is a fundamental breach of her contract.
To prove that she has been constructively dismissed an employee must show that:
- you have behaved so badly (for example discriminating against her), that all trust and confidence has broken down between you
- she resigned because of your behaviour
- she did not wait too long before resigning; if she does you can argue that she accepted the treatment by continuing to work as normal
Are there good practice steps to take where an employee says she is going to resign and claim constructive dismissal?
It is good practice to meet with her to discuss why she says that you have behaved in a way that entitles her to resign and claim constructive dismissal. There may have been a misunderstanding. For example, she may think that her job has been taken by her maternity locum when this is not the case.
Is there good practice for me to follow where an employee complains about being treated unfavourably because of maternity leave, and I do not agree?
It is good practice to listen to her concerns, and explain the situation from your point of view and (where allegations are made against colleagues/managers) investigate the allegations and resolve them
If there has been no informal attempt by the employee to discuss her concerns before her grievance, it is good practice to try to resolve it without going through the grievance procedure, if your employee agrees. If the employee does not agree, then you should investigate the grievance using the ACAS guide on how to deal with grievances.
An employee can ask questions under an informal ACAS procedure and although you are not legally obliged to respond, it is advisable to do so as a tribunal may look at whether you have answered relevant questions, how you have answered them, and take this into account when making their decision on your discrimination claim.
An employee can ask questions under an informal ACAS procedure and although you are not legally required to respond, it is advisable to do so as it could be taken into account if the case goes to tribunal.
There is an ACAS Code which sets out the procedure for asking such questions and how an employer should respond.
The following steps set out the main issues for a responder to consider when
deciding on how to answer the questions.
1 – Agree/disagree with questioner’s statement.
The employer should consider if they agree, agree in part or disagree with the description of the treatment the questioner alleges they received.
The responder should do some appropriate investigation then set out their version of the events.
2 – Responding to other questions.
In addressing the questioner’s specific issues raised, the responder needs to consider and answer as appropriate.
If a responder thinks some other questions are not relevant or unclear, they should clarify their purpose with the questioner to help them to reply appropriately.
If a responder decides not to answer a question, they should explain why.
You are not legally obliged to respond to an employee’s request for information, but if she brings a claim, a tribunal may look at whether you have answered relevant questions, how you have answered them, and take this into account when making their decision on your discrimination claim.
Last updated: 25 Jun 2018