Jaluch Limited

For many years the view has been taken that a woman on maternity leave should be protected from redundancy where possible. As a result of this there have been many instances of a man currently in work being made redundant whilst a woman out of work (i.e. on maternity leave) is not. But with this latest case, what is your greatest risk? A claim for sex discrimination from the man or a claim of sex discrimination from the woman?

The outcome of this case suggests that whilst pregnant employees and those on maternity leave are by and large ‘protected’ in redundancy situations, the protection cannot favour such employees to an extent beyond what is ‘reasonably necessary’ to justify them for the disadvantage arising by reason of the risk of redundancy.

In this case, the employer gave the female employee a notional rather than real maximum score for one selection criterion when in a pool for redundancy with a male employee and it was concluded that there were alternatives that would have protected the woman’s position without giving her an unfair advantage over her male colleague, who as a result suffered unlawful sex discrimination.

We suggest that if you find yourself in this difficult position, to consider the following alternatives:

• To exclude the employee who is pregnant or on maternity leave out of the redundancy pool and subsequent selection criteria
• Allow for an additional score criterion to be included that is not based on performance but allows a special reward for protected employment status

And if in doubt, ask! Our experienced team of HR Consultants are here to support you, so please get in touch… we’d be delighted to help!

Also this update:

• Annual leave and sickness absence
• Social media fears