XpertHR's head of content Jo Stubbs and senior employment law editor Clio
Springer discuss the rights of pregnant employees and those on maternity leave in a redundancy situation.
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The questions in full:
Presumably employers should not select employees for redundancy because they are pregnant or on maternity leave?
Absolutely not. Employers need to be aware that it is automatically unfair to select an employee for redundancy because she is pregnant, has given birth or has exercised her statutory maternity rights. It will also amount to discrimination.
So that deals with deliberate selection on these grounds. But can employers also make inadvertent errors, for example choosing selection criteria that might adversely affect someone who is pregnant or on maternity leave?
Yes. Employers' redundancy selection criteria should be objective, non-discriminatory and fairly applied. For example, if they plan to use employees’ absence records they should disregard any maternity-related absence, or if they are using employee output or performance they need to make sure that any reduction because of an employee’s pregnancy is not taken into account.
If an employee who is pregnant or on maternity leave is selected for redundancy will she have any special rights?
Employers must take reasonable steps to find alternative employment for any employee facing redundancy, or risk a finding of unfair dismissal. However, in the case of an employee on maternity leave, the employer’s obligations go further than this. The employer is under a statutory obligation to offer her any suitable available vacancy that exists, even if she is not the best person for the position.
What is a "suitable vacancy"?
The new employment must take effect immediately on the ending of the existing employment. The new work must be suitable in relation to the employee and appropriate for her to do in the circumstances, and the new contract provisions must not be substantially less favourable than those of the previous contract.
Are any other redundant employees entitled to this preferential treatment?
Yes, employees on additional paternity leave and adoption leave are also entitled to this preferential treatment regarding being offered any suitable available vacancy that exists.
What about employees who are pregnant but have not yet gone on maternity leave?
They are not covered. The employer will be under its normal obligation to look for suitable alternative employment for such an employee, but will not be under the strict obligation to offer her any suitable available vacancy even if she is not the best candidate.
Employers have obligations to consult with potentially redundant employees, and this will include employees on maternity leave. Presumably this can raise practical problems?
Employers need to consult individually with employees affected by proposed redundancies, and may have collective consultation obligations too, and it is important that employees on maternity leave are not forgotten. So far as practicable, the employer should give them information about the proposed redundancies in the same way and at the same time as other employees, and involve them in the consultation process. This might cause practical difficulties in the case of, for example, an employee who has recently given birth and is busy with her new baby, but the employer should still attempt to involve her. This may involve rearranging meetings for a different time or perhaps conducting them at a different venue closer to the employee’s home or even at her home.
How does redundancy affect statutory maternity pay?
Generally it has no effect. An employee will qualify for statutory maternity pay if she has 26 weeks’ continuous employment by the end of the 15th week before the expected week of childbirth, and earns at least the lower earnings limit for national insurance purposes. Once she has qualified for statutory maternity pay she will be eligible to be paid it for the full 39-week period, even if she is made redundant before her maternity leave starts.
In a redundancy situation, it might be more practical for the employer to pay the employee one lump sum, rather than keeping her on the payroll, but both parties may end up paying slightly higher national insurance contributions. The employer would also need to ensure it took into account any rise in the statutory maternity pay rate occurring during the employee’s maternity pay period.
An employee who is made redundant on maternity leave is likely to be receiving either statutory maternity pay or possibly no pay. Will this affect her statutory redundancy payment?
No. Assuming she has two years’ service she will be entitled to a statutory redundancy payment. When calculating her payment, which is based on her age, salary and length of service, the employer should use her normal week's pay, not a week in which she received maternity pay or no pay.
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"How to" guidance
How to deal with pregnant employees and those on maternity leave in a redundancy situation Although employees who are pregnant or on maternity leave can be made redundant, employers need to exercise particular care in these circumstances. They should also be aware that redundant employees who are on maternity leave have a statutory right to be offered any suitable available vacancy.
How to consider offers of suitable work for redundant employees An employer faced with the prospect of making an employee redundant should consider whether or not there is any other available work for the employee. Special rules apply in relation to alternative work where the employee is on maternity leave.
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More resources on this topic from XpertHR
The questions in full
Presumably employers should not select employees for redundancy because they are pregnant or on maternity leave?
Absolutely not. Employers need to be aware that it is automatically unfair to select an employee for redundancy because she is pregnant, has given birth or has exercised her statutory maternity rights. It will also amount to discrimination.
So that deals with deliberate selection on these grounds. But can employers also make inadvertent errors, for example choosing selection criteria that might adversely affect someone who is pregnant or on maternity leave?
Yes. Employers' redundancy selection criteria should be objective, non-discriminatory and fairly applied. For example, if they plan to use employees’ absence records they should disregard any maternity-related absence, or if they are using employee output or performance they need to make sure that any reduction because of an employee’s pregnancy is not taken into account.
If an employee who is pregnant or on maternity leave is selected for redundancy will she have any special rights?
Employers must take reasonable steps to find alternative employment for any employee facing redundancy, or risk a finding of unfair dismissal. However, in the case of an employee on maternity leave, the employer’s obligations go further than this. The employer is under a statutory obligation to offer her any suitable available vacancy that exists, even if she is not the best person for the position.
What is a "suitable vacancy"?
The new employment must take effect immediately on the ending of the existing employment. The new work must be suitable in relation to the employee and appropriate for her to do in the circumstances, and the new contract provisions must not be substantially less favourable than those of the previous contract.
Are any other redundant employees entitled to this preferential treatment?
Yes, employees on additional paternity leave and adoption leave are also entitled to this preferential treatment regarding being offered any suitable available vacancy that exists.
What about employees who are pregnant but have not yet gone on maternity leave?
They are not covered. The employer will be under its normal obligation to look for suitable alternative employment for such an employee, but will not be under the strict obligation to offer her any suitable available vacancy even if she is not the best candidate.
Employers have obligations to consult with potentially redundant employees, and this will include employees on maternity leave. Presumably this can raise practical problems?
Employers need to consult individually with employees affected by proposed redundancies, and may have collective consultation obligations too, and it is important that employees on maternity leave are not forgotten. So far as practicable, the employer should give them information about the proposed redundancies in the same way and at the same time as other employees, and involve them in the consultation process. This might cause practical difficulties in the case of, for example, an employee who has recently given birth and is busy with her new baby, but the employer should still attempt to involve her. This may involve rearranging meetings for a different time or perhaps conducting them at a different venue closer to the employee’s home or even at her home.
How does redundancy affect statutory maternity pay?
Generally it has no effect. An employee will qualify for statutory maternity pay if she has 26 weeks’ continuous employment by the end of the 15th week before the expected week of childbirth, and earns at least the lower earnings limit for national insurance purposes. Once she has qualified for statutory maternity pay she will be eligible to be paid it for the full 39-week period, even if she is made redundant before her maternity leave starts.
In a redundancy situation, it might be more practical for the employer to pay the employee one lump sum, rather than keeping her on the payroll, but both parties may end up paying slightly higher national insurance contributions. The employer would also need to ensure it took into account any rise in the statutory maternity pay rate occurring during the employee’s maternity pay period.
An employee who is made redundant on maternity leave is likely to be receiving either statutory maternity pay or possibly no pay. Will this affect her statutory redundancy payment?
No. Assuming she has two years’ service she will be entitled to a statutory redundancy payment. When calculating her payment, which is based on her age, salary and length of service, the employer should use her normal week's pay, not a week in which she received maternity pay or no pay.
"How to" guidance
How to deal with pregnant employees and those on maternity leave in a redundancy situation Although employees who are pregnant or on maternity leave can be made redundant, employers need to exercise particular care in these circumstances. They should also be aware that redundant employees who are on maternity leave have a statutory right to be offered any suitable available vacancy.
How to consider offers of suitable work for redundant employees An employer faced with the prospect of making an employee redundant should consider whether or not there is any other available work for the employee. Special rules apply in relation to alternative work where the employee is on maternity leave. |