With the pandemic hitting employers hard, many are having to make difficult decisions over whether they need to make people redundant. While most employers know the legal process for a redundancy consultation, some are unaware of, or struggle with, the additional protection for people on maternity leave.
What protection is available?
In a nutshell, an employee who is absent from work on maternity leave has a priority protection for redeployment in their organisation. This means that if there is a suitable and appropriate role for the person facing redundancy where its capacity, place and other terms and conditions are not substantially less favourable than the existing job, then the employee on maternity leave needs to be offered the role first, before anyone else. In addition, they do not have to be put through a competitive process. In effect their rights trump all others in this situation.
Many businesses don’t appear to be aware of this priority protection, and some that do don’t know how to apply it properly. For example, I advised one client who would have applied maternity redundancy protection too late if they hadn’t taken legal advice. They were combining two roles into one and intended to see if the employee on maternity leave got the combined job and then, if she didn’t, they would look at what other vacancies they had available and apply the protection at that point. What they needed to do was consider whether the combined job satisfied the requirements and, if it did, then they would have to offer it to her.
This protection also applies to employees absent on adoption leave and shared parental leave. It is probably considered even less frequently by employers.
How do you decide if an available role satisfies the requirements?
The job has to be both suitable and appropriate for the employee, and not substantially less favourable as regards its capacity, place and other terms and conditions.
Many employers struggle with deciding whether a role is suitable and appropriate if they can’t put the employee through a process to assess that. Consultation becomes key in understanding the skills and experience of the employee and the employer must then make an objective decision. However, if there is a role that is suitable and appropriate but its terms and conditions are substantially less favourable, the business does not have to amend the terms to make them satisfy the second limb.
What if there is a disagreement?
The fact that an employee is on maternity leave does not mean that she cannot be made redundant. However, an employer should make sure that it has a business case that explains why her role is being made redundant to avoid a claim that it is because of the employee taking maternity leave.
If an employer doesn’t give an available job to an employee who is on maternity leave and they feel they should have been given it, the only recourse they really have is litigation. However, for many women on maternity leave, suing their employer is not a priority as is demonstrated by the limited number of reported cases in this area. Many see this as giving the company the upper hand, but the government is considering whether the time limit for bringing maternity claims should be extended.
Is an extension to maternity rights on the cards?
The law on redundancy protection only currently applies when an employee is on maternity leave. The government agreed in July 2019 to extend the enhanced protection to cover employees from the point that they notify their employer that they are pregnant until six months after their return to work. However, no time frame was given for when this would be brought in. The government was recently asked to prioritise this legislative amendment following a 236,000-strong petition campaigning for an extension to paid maternity leave, but it simply repeated that it would act when parliamentary time allowed.
When going through a redundancy consultation, employers must be mindful of maternity redundancy protection, otherwise they could be left facing unwanted problems.
Kirsty Thompson is an employment partner at Devonshires