The protected period for women begins when she becomes pregnant and ends when she returns to work following ordinary and, if applicable, additional maternity leave.
During ordinary and additional maternity leave, the employee's contract of employment remains in force until either party expressly ends it or, where the contract is fixed-term, it expires. The employee remains benefitted by all terms under the contact save for remuneration. Wages or salary payable to the employee cease during the ordinary and additional maternity leave and the employee will alternatively be entitled to statutory sick pay.
Employers need to be aware that just because an employee is not receiving their usual salary, it does not mean that she should not benefit from any bonus or pay rise that she would ordinarily receive were she not on maternity leave. It is important for employers to not consider employees "out of sight" by reason of maternity leave for risk of being seen as discriminatory.
When a redundancy situation applies within a business, Regulation 10 of the MPL Regulations provides specific protection for those employees who are pregnant or on maternity leave.
Where, during an employee's ordinary or additional maternity leave period, it becomes impractical for her employer to continue to employ her under the terms of her existing contract of employment, the employee is entitled to be offered – and not just invited to apply for – an appropriate alternative role. An alternative vacancy must be both suitable and appropriate for the employee to do in the circumstances, and the terms and conditions must not be substantively less favourable than her previous role.
Whilst this gives the employee on maternity leave priority over other employees who are also at risk of redundancy, this is a rare example of lawful positive discrimination.
If an employee is dismissed where the only or principal reason for her dismissal was related to pregnancy or maternity leave, this will amount to automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and even give rise to discrimination claims. Similarly, where the only or principal reason for an employee being selected for redundancy is connected with the fact that the employee is pregnant or on maternity leave, this will also give the employee the right to claim before an Employment Tribunal.
In a bid to change the culture which exists around mothers and the workplace, a consultation has been launched by the government which plans to increase the legal protection afforded to women against redundancy by up to six months following their return to work.
The consultation will consider issues such as when the six-month period should commence, whether or not to extend the protection to others including men who return from adoption or shared parental leave and even whether six months is an appropriate length of time or if protection should extend to up to one year or more.
When considering redundancy, employers should firstly ensure the redundancy is genuine. Simply realising that you can manage without the employee after redistributing her role amongst other employees during maternity leave is not a reason to make her role redundant. Employers need to consult in the usual way even when the employee is on maternity leave and use a selection process that is objective, measurable and non-discriminatory.If your business is going through reorganisation and you require advice and guidance on the redundancy process to ensure that you are compliant with employment law, please contact our Employment Law Department who can provide specialist guidance and advice - call us or email by using the form to the right.