A report by the Equality and Human Rights Commission in 2016 revealed that 11% of mothers surveyed believed they had been dismissed, made redundant or forced to leave their employment because of their pregnancy. Read on for more information.
At Lincs Law we are unfortunately still receiving a high number of enquiries from mothers who have been chosen for redundancy because they are pregnant. If you would like more information on the rights that pregnant employees have in a redundancy scenario, please read on.
Can I be Selected for Redundancy because I am Pregnant?
It is unlawful for your employer to select you for redundancy based purely on the fact that you are pregnant or have gone on maternity leave. If have been selected for redundancy for this primary reason, then you would be able to bring an Automatic Unfair Dismissal claim in the Employment Tribunal.
It does not matter how long you have been employed by your employer. If you have been selected for redundancy because you are pregnant, you are eligible to bring this claim.
What If My Redundancy Is Not Exclusively Due to Pregnancy?
The situation can be a little different if you are pregnant (or on maternity leave) and you are selected for redundancy, but the fact that you are pregnant was not a factor in your selection.
In this situation the usual test of fairness in a redundancy scenario shall apply. This is where your employer must show that they had a fair reason to make redundancies and that they followed a fair procedure (for further information please see our blog https://lincslaw.co.uk/blog/are-you-being-made-redundant-five-questions-to-ask/
However, often our clients are not aware that if you are selected for redundancy whilst on maternity leave, your employer must offer you a suitable alternative vacancy. This is a mandatory requirement and it does not matter how inconvenient it may be to the employer to offer this position to the employee.
If your employer does not offer you any suitable alternative vacancy, then you will have a claim for automatic unfair dismissal.
The other common scenario we assist our clients with is when the employer, during the selection process, applies assessment criteria to pregnant employees (or those on maternity leave) which will almost certainly prejudice them against others in their selection pool. What this means is that the pregnant employee will be selected for redundancy based on their low score. This score is apparently based on objective criteria, when in actual fact, the reason is directly linked to their pregnancy.
Examples of selection questions which would produce unfair comparisons between pregnant and non-pregnant employees are:
- How many sick days / doctor’s appointment has the employee(s) had in the last 12 months. Pregnant workers will likely score higher due to antenatal classes; doctor’s appointments; scan appointments and general sickness associated with pregnancy.
- Ability to be flexible with working hours/shift patterns. Pregnant employees and those on maternity leave are unlikely to be able to pick up ad hoc shifts in the future as they will have childcare considerations to consider and therefore require a set shift patterns or hours.
- Ability to work full time vs part-time. It is more likely that employees coming back to work from maternity leave will request to work part-time due to childcare requirements.
If your employer has prejudiced the selection process against pregnant employees (or those on maternity leave) then you may be able to bring an Unfair Redundancy Dismissal Claim in the Employment Tribunal. To bring this type of claim, you would need to have worked for your employer for at least two years.
What Can You Do?
If you have been unfairly made redundant because of your pregnancy or maternity leave, the first step is to appeal against the decision with your employer.
It is important that you comply with your firm’s internal appeal process first. Whilst you may feel like it is a pointless exercise to appeal to your employer, it is an important step if you wish to bring an Employment Tribunal claim.
The Employment Tribunal will look unfavourable on claimants who did not exhaust their employer’s own grievance policies first and it can reduce any compensation amount payable.
Time Limits for Automatic Unfair Dismissal and Unfair Redundancy Dismissal
You will need to begin the ACAS Early Conciliation process within three months less one day from your date of dismissal. The time limit for submitting your Employment Tribunal claim will depend upon the dates of your ACAS Early Conciliation. However, it is important that you begin the ACAS Early Conciliation process within the three-month deadline as to fail to do so may render your claim out of time.
Can Lincs Law Employment Solicitors Help you?
If you believe you have been selected for redundancy or dismissed because you are pregnant or on maternity leave and would like further guidance and assistance, please do not hesitate to contact us on 01522 440512 for a free, no obligation telephone consultation. For more information about redundancy generally, please visit our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/redundancy/
Specialist Employment Law Solicitor