Can you make a pregnant employee redundant?
It’s a common misconception amongst employers that an employee cannot be dismissed by reason of redundancy when she is on maternity leave.
There are rules (not dealt with in this article) giving a redundant employee who is on maternity leave a preferential position when it comes to the allocation of alternative employment. But such an employee is not in an obviously preferential position as regards the issue of selection. The bottom line is that an employee on maternity leave can be dismissed by reason of redundancy – though the dismissal will be unfair if the decision to select that employee is tainted by considerations relating to exercise of maternity rights.
The point recently came up before the Employment Appeal Tribunal (EAT) in the case of S G Petch Limited -v- English-Stewart. The employee was a part-time marketing manager. During her absence on maternity leave her work was picked up by the other three members of her team. Her employer concluded that the team was overstaffed and, on her return to work, she was told that her role was redundant. She was the only employee dismissed.
The conclusion of the Employment Tribunal was that:
- the dismissal was because of her maternity leave
- this constituted discrimination under the Equality Act 2010 and finally, (and in consequence)
- the dismissal was therefore automatically unfair.
The EAT pointed out that the Employment Tribunal had made a finding of fact that there was a genuine redundancy situation affecting the employee’s team. Therefore, the dismissal was clearly for redundancy and not because the employee had been on maternity leave. The EAT said the dismissal was not automatically unfair, as it was obvious to the Tribunal (and therefore the EAT) that the dismissal was for redundancy and not because the employee had taken maternity leave.
However, the EAT pointed out that the Employment Tribunal failed to consider the correct part of the Maternity and Parental Leave etc Regulations 1999. The Regulations can make a dismissal automatically unfair (in what is otherwise a genuine redundancy situation) if an employee is selected for dismissal by reason of redundancy because of maternity leave. The EAT sent the case back to the Employment Tribunal with an instruction to consider this point properly.
The practical significance of the EAT’s decision is that even where, as in the Petch case, it is clear that a redundancy situation genuinely exists, the employer’s approach to selection will be scrutinised under the brightest of spotlights. The evidential burden will be on the employer to show that discrimination did not taint the selection process. The challenge for an employer is that in order for an employee to be successful, it is not necessary that the evidence should show that the sole or principal reason for the dismissal was the taking of maternity leave, but merely that the exercise of that right had “a significant influence on the outcome”.
The moral of the story is that an employee who is absent on maternity leave is certainly not immune from any redundancy process. However, if such an employee is identified as a potential candidate then the employer must tread very carefully indeed – and would be well-advised to take legal advice at the earliest possible opportunity.