Risks For Employers of Making Employees on Maternity Leave Redundant

Employers, even in small companies, should always follow the correct procedures before making employees redundant, namely by giving notice of possible redundancy, followed by a consultation period and then if no suitable alternative employment is found for the employee, by giving notice of redundancy.

A fair selection procedure should always be followed. Although length of service can be taken into account as one of several criteria, it should no longer be used as a single criterion e.g. “last in, first out”, since that could be discriminatory. The safest method of selection of employees for redundancy is to use a matrix of selection criteria with different scores for each criterion.

If however employers are considering making an employee who is on maternity leave or who has recently returned from maternity leave redundant, then care must be taken to avoid a claim for sex discrimination including an award for injury to feelings. Indeed to dismiss an employee who is on maternity leave or recently returned from maternity leave could be held to be automatically unfair.

There are special requirements for an employee whose post is made redundant while she is on maternity leave relating to suitable alternative employment.

If there is evidence that the alleged redundancy is a sham, the dismissal will be held to be automatically unfair. If an employee has made redundant on her return from maternity leave and the main reason was the fact that she took maternity leave then the dismissal will be automatically unfair. It is likely that an Employment Tribunal will also find that it was discriminatory. If that happens damages will be unlimited, the onus of proof will shift to the employer to prove that the dismissal was not discriminatory and an award for injury to feelings can also be made.

The consultation process for redundancy will be of the utmost importance. Employers must also consult with employees who are on maternity leave. A failure to consult the employee could result in the finding of automatic unfair dismissal.

The employer must also offer any suitable employment within the Company to an employee on maternity leave before the end of her employment, even if there is another employee who was not on maternity leave who has been made redundant at the same time for whom the post would also be suitable and even if there was only once suitable post.

If the employer fails to offer this suitable post to the employee on maternity leave, the dismissal will be automatically unfair.

The only possible way to avoid the risk of an unfair dismissal claim would be to time the dismissal due to redundancy after the employee has returned to work from maternity leave provided there is no direct link between the redundancy and the fact that the employee has been on maternity leave.

If you require any further information about this subject or you have any issues on employment law please contact Alison Lythgoe of Parrott & Coales LLP on 01296 318500.