Redundancy and Maternity

A case heard by the Employment Appeal Tribunal provides a useful reminder of the risks of discrimination claims if an employer neglects or ignores the position of staff on maternity leave.

An employee was on maternity leave when she was put at risk of redundancy. Details of opportunities for redeployment were sent to her work email address, which she did not see until she learned that she had missed something and contacted the employer, whereupon the email was sent to her personal email address.

The employment tribunal found that the employee had been subjected to unfavourable treatment because she was exercising her right to maternity leave and the employer’s “failure adequately to communicate with [the employee] with regard to the redundancy exercise”.

Although there was a subsequent successful appeal to the EAT on a procedural matter in that there was an incorrect approach and concluded that the employment tribunal’s decision could not stand, allowed the appeal and remitted the case back to the employment tribunal to consider the claim again.

Regulation 12A (4) of the Maternity and Parental Leave etc Regulations (1999) allows for employers to be entitled to have “reasonable contact” with their employees whilst on maternity leave. What counts as reasonable contact will depend on the particular circumstances. Employers may wish to discuss what degree of ongoing contact the employee. However, the employer’s obligations are ongoing.

Actions: Arrange and agree communication channels and frequency before maternity leave and manage carefully as the beginning of pregnancy to the end of maternity leave is a ‘protected period’ during which a woman is entitled to special consideration.

Failure to consult a woman on maternity leave about possible redundancy is likely to be unlawful discrimination.

A woman made redundant while on maternity leave must be offered any suitable alternative vacancy if you have one. She doesn’t need to apply for it.

Right of return to old job on terms & conditions which must be as good

SW Yorkshire Partnership NHS Foundation Trust v Jackson