Duncan Lewis

What Are My Rights When Faced With Redundancy During Maternity?

Date: (12 September 2011)    |    

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Duncan Lewis:When an employee becomes pregnant, it is important that they be completely open about their condition with their employer. Being open about their pregnancy will mean that the employee can arrange to have a risk assessment conducted, but more importantly they will be entitled to have some time off for ante-natal arrangements, and there will be quite a number of these in the first few months.
The importance of being completely transparent about your pregnancy in the less obvious early stages is that later on, if the employer tries to make you redundant, your openness throughout will help protect you and work in your favour at any industrial tribunal, should it come to that. An experienced firm of solicitors such as Duncan Lewis can advise you comprehensively on this and other matters.

If your employer decides to make you redundant when you are pregnant, you can make a case for unfair dismissal based on any of three criteria. If the employee covering for you during your maternity leave is preferred by the employer and there is no obvious redundancy situation involved, then this could be the grounds of your claim. Likewise, if the redundancy is genuine but the main reason you are being made redundant is your pregnancy and maternity leave, you have a case. If you haven’t been consulted because you were on maternity leave this could also give you grounds for claiming unfair dismissal.

Employers can, in fact, make pregnant employees or those on maternity leave redundant, but only if the criteria are objective in the selection process and great care is taken to avoid accusations of discrimination. A fair procedure has to be followed by the employer and the criteria have to be measurable rather than based simply on someone’s personal preferences or opinion.

The employer will need to be able to support their decision with appropriate documentation such as performance and personnel records, and will usually get different managers involved in the selection process to avoid accusations of unfairness. If there is any litigation, these records will be disclosed to legal officials including employment solicitors.

If employee attendance records are being used as the criteria for making you redundant, it is up to you to check that these are accurate, and that absences for any reasons related to your pregnancy have not been used.
Also be on the lookout for examples of indirect discrimination. For example, a redundancy policy that automatically selects employees on non-permanent contracts as the first to go during a round of redundancies will be discriminating against employees on maternity leave and those who are pregnant.

You should also have been automatically offered alternative work of a suitable nature should any have been available. If you were indeed offered other reasonable work but turned it down, then this will greatly weaken your case if you decide you want to take the matter to an industrial tribunal.