Redundancy during maternity leave

tiernsee

I would welcome your advice and comments about a situation which will soon arise at work. We are in the process of merging with another department. As a result there will be less jobs. At a certain grade there will be two ladies suitable for the job. One has just started maternity, the other unfortunately has just had a miscarriage but has made no secret of the fact that she is planning on getting pregnant soon.

I thought that we should have an open competition between the two of them for the position (assuming they both want it), however, I've been told that we cannot make an employee who is on maternity leave redundant. Is this correct? This seems rather unfair on the other employee.

Personally I'd rather not lose either of them, but we do not have the work for two of them at this grade. Suggestions and ideas would be welcome.

Thanks

LittleVoice

tiernsee wrote: »

I thought that we should have an open competition between the two of them for the position (assuming they both want it), however, I've been told that we cannot make an employee who is on maternity leave redundant. Is this correct? This seems rather unfair on the other employee.

Women on maternity leave can be made redundant BUT they have automatic preferential treatment in comparison with someone who is not. So the employee on maternity leave would have the right to the job ahead of the other.

It is only when they are actually on maternity leave that this preferential treatment applies. Planning to be pregnant or being pregnant but not on maternity leave does not equalise the situation.

ERICS_MUM

LittleVoice wrote: »

Women on maternity leave can be made redundant BUT they have automatic preferential treatment in comparison with someone who is not. So the employee on maternity leave would have the right to the job ahead of the other.

It is only when they are actually on maternity leave that this preferential treatment applies. Planning to be pregnant or being pregnant but not on maternity leave does not equalise the situation.

Oh, I was under the impression that the preferential treatment rule only applied if both women were "level" in the redundancy assessment process, to prevent maternity leave being used as the deciding factor (in favour of the woman not on m/leave).

KiKi

LittleVoice wrote: »

Women on maternity leave can be made redundant BUT they have automatic preferential treatment in comparison with someone who is not. So the employee on maternity leave would have the right to the job ahead of the other.

Hi LV

So if two people were doing the job of, say, 'Finance Officer' and one was on maternity leave and one wasn't, the woman NOT on maternity leave would automatically be made redundant in this situation?

Is it automatic, or would this only apply if they had been through a process first to determine who the more capable candidate is? So if they were both interviewed and the woman (or man) not on maternity leave is deemed more capable, would the woman on maternity leave still get preferential treatment? (In which case interviewing them both would be pointless.)

Never experienced this before so interested in knowing! If the latter is the case I think that's terribly unfair.

Cheers
KiKi

supertomsk

I am going through a similar thing at work. There are 14 of us on fixed term contracts which are coming to and end and 8 are to be extended by 6 months. We are having a selection process but the 1 person on maternity leave will automatically be extended.

mountainofdebt

Talk about an unlevel playing field.

SarEl

KiKi wrote: »

Hi LV

So if two people were doing the job of, say, 'Finance Officer' and one was on maternity leave and one wasn't, the woman NOT on maternity leave would automatically be made redundant in this situation?

Is it automatic, or would this only apply if they had been through a process first to determine who the more capable candidate is? So if they were both interviewed and the woman (or man) not on maternity leave is deemed more capable, would the woman on maternity leave still get preferential treatment? (In which case interviewing them both would be pointless.)

Never experienced this before so interested in knowing! If the latter is the case I think that's terribly unfair.

Cheers
KiKi

No - it isn't automatic. It is difficult for an employer to make a woman on maternity leave redundant - not impossible. The law says that a woman must not be made redundant for exercising her right to take (or be about to take) maternity leave. An employer must therefore be able to fairly justify the choice (just as they should be able to do in any other redundancy). If the employer can do so, then they can make a woman on maternity leave redundant, but they must give written reasons for their choice.

However, a woman who is on maternity leave (and in this case the leave must have started) is guaranteed the right to return to a suitable alternative job and she must be offered such a job if it is available, even if there is a more suitable candidate. She can only be made redundant if there is no such vacancy.

It is relatively easy to fall foul of these provisions because many employers cannot objectively justify any of their decisions about redundancy - we all know that employers more often than not know what the deciison will be before they start and selection criteria are more often than not chosen with that end in mind.Under normal circumstances this is hard to challenge for most workers because the process appears fair even though it may well not be. It is easier for a woman on maternity leave to challenge because the employer will more often than not be in a right pickle trying to explain their decisions. Because they never made then fairly in the first place! Their reasons are very closely examined if they are taken to tribunal.

And as to whether it is fair or not - well that depends, doesn't it, on where you are standing? Prior to this legisation it was commonplace for women to be "made redundant" or dismissed when pregnant, about to take, or taking, maternity leave. That isn't fair either. Unfortunately it still happens and many women do not understand their rights well enough to challenge whether or not it was fair.

KiKi

SarEl wrote: »

No - it isn't automatic. It is difficult for an employer to make a woman on maternity leave redundant - not impossible. The law says that a woman must not be made redundant for exercising her right to take (or be about to take) maternity leave. An employer must therefore be able to fairly justify the choice (just as they should be able to do in any other redundancy). If the employer can do so, then they can make a woman on maternity leave redundant, but they must give written reasons for their choice.

Your underlining is sometimes scarily forceful.


So, assuming a fair selection process has taken place, a woman on maternity leave can be made redundant, but MUST be offered an alternative suitable vacancy if one exists?

And as an example, is a 'fair' process one that reviews the last three years' performance data (objectives and behaviours) as a selection tool? Or would it have to include an interview process as well to be considered up to date and fair data?

One more question! Let's say the organisation is going through a restructure. Someone on maternity leave and another woman are competing for one job. And elsewhere in the same department two men are also competing for one job (which they both currently do). Let's say the non-maternity woman is selected for the job, through a fair process because she is more capable. And now the woman on maternity leave must be offered a suitable vacancy.

Let's say, for argument's sake, that there are no actual vacancies in the organisation - pretty much everyone is competing for their job, on a 2 people to 1 job basis. In that case, would you regard the job that the men are competing for as a 'vacancy' which she is entitled to (and therefore they would both be made redundant in her favour)? Or is it not a vacancy because they are both already doing the job, and one of them will continue to do it? So they're competing for their own job, rather than a 'vacant' post?

Just curious. I like to learn.

And as to whether it is fair or not - well that depends, doesn't it, on where you are standing? Prior to this legisation it was commonplace for women to be "made redundant" or dismissed when pregnant, about to take, or taking, maternity leave. That isn't fair either. Unfortunately it still happens and many women do not understand their rights well enough to challenge whether or not it was fair.

For me, no, it doesn't depend where you're standing. I am making an assumption that an employer has gone through a fair selection process. And if I were on maternity leave but had been made redundant because someone was more capable than me, I wouldn't have a problem with it!

That's very different from a woman being made redundant because she was about to go / was on maternity leave, which of course is unfair and I would contest!


Thanks for the info. That's one more for the Employment Law section of my brain.

KiKi