Research undertaken by the Equality and Human Rights Commission in 2016 found that 77% of pregnant women and new mothers had experienced discrimination or negative experiences during pregnancy, maternity or return to work, and that 11% of mothers lost their job due to maternity discrimination each year. This figure consists of women who were dismissed, unfairly made redundant or felt forced to resign as a result of the adverse treatment they received. In this article we remind employers and employees of the special treatment afforded to pregnant women during the redundancy process and also the circumstances when a dismissal will be considered unfair because it is pregnancy related.
Employers can dismiss employees by reason of redundancy if they need fewer employees to do the work or a business is closing down or moving location. The employer must also ensure a fair selection procedure is carried out, conduct proper consultation and consider offering opportunities for alternative employment. Employees with more than two years service will be entitled to a Statutory Redundancy Payment.
The EHRC findings showed: 41% employers agreed that pregnancy in the workplace puts "an unnecessary cost burden" on the workplace.
The current legislation provides additional levels of protection for women made redundant during maternity leave; in particular they are entitled to be offered any suitable alternative vacancy that exists as soon as their post is at risk of redundancy. The role should be offered as soon as the employer is aware of the potential redundancy and they should not wait until the employee's maternity leave has come to an end. She should be offered the role in priority to other employees and without having to go through normal selection procedures e.g. competitive interviews. Failing to offer such an alternative vacancy will mean that the subsequent dismissal for redundancy is unfair and it may also be discriminatory. Whilst this additional protection does not apply to employees during pregnancy or after their maternity leave has ended, employees selected for redundancy because of their pregnancy will have potential claims for automatically unfair dismissal and/or discrimination.
Employees who are dismissed for reasons connected with pregnancy or childbirth are given special protection against being unfairly dismissed. This protection applies irrespective of how long the employee has worked for her employer.
If any employee is dismissed during the protected period (that is the period that she is pregnant through until the end of her maternity leave) she will be entitled to a letter explaining the reasons for her dismissal, regardless of her length of service.
An employee will be regarded as automatically unfairly dismissed if the reason for the dismissal was that:-
- She is/was pregnant or had anything to do with her pregnancy (including seeking to take time off for ante-natal care or pregnancy related illness);
- She has given birth or the reason has anything to do with childbirth;
- She has been medically unfit to do her normal job due to pregnancy and has been dismissed without considering her for an alternative job or suspending her on normal pay;
- She sought to take or avail herself of the benefits of those terms and conditions of her employment which continue, during her maternity leave;
- She failed to return from maternity leave in a case where the employer did not tell her when she was due to return and she believed that her maternity leave had not come to an end; or, where her employer had given her less than 28 days notice of her return date and it was not reasonably practicable for her to return on that date;
- She did some work on, or refused to work, a KIT day;
- She was selected for redundancy for any of the reasons above;
- She was made redundant whilst pregnant, during her maternity leave or at the end of her leave but was not offered an alternative job where one existed.
Whilst women have the right to pursue claims if they are unfairly dismissed or subjected to discrimination, very few women do so. The EHRC research found that only one in four women who experience discrimination raise this with their employer, and fewer than 1% pursue Employment Tribunal claims. A variety of reasons are put forward for not making complaints or taking formal action such as the extra stress it would put on her life while pregnant or caring for her young child, the cost of taking the case to an employment tribunal, and actually being able to provide evidence of the discrimination.
Our next article shall explore employer's duties not to discriminate specifically on the grounds of pregnancy and maternity in more detail.
If you are an employer requiring advice on redundancy processes, particularly the legal obligations towards employees who are pregnant or new mothers or, if you are an employee who is pregnant or has recently given birth and you are facing redundancy or have been dismissed, please contact Fosters on 01603 620508 or via our email contact form and a member of our employment law team will be in contact very soon.