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However, despite having the qualifications and experience … Employers often believe that it is unlawful to make a woman redundant during maternity leave. How to stay in touch with employees on maternity leave: Redundancy or reorganisation during maternity leave. Redundancies can, however, become further complicated in circumstances where the law affords the worker additional protections, such as if the employee is pregnant or on maternity leave. Where a redundancy will take effect before a woman goes on maternity leave is she entitled to preferential treatment with regard to being offered suitable alternative employment? Under the Equality Act 2010, employees can make a claim to the Employment Tribunal if they believe that they have been discriminated against or victimized because of their pregnancy or because they have taken, are taking or intend to take maternity leave (or, indeed, any other ‘protected characteristic’ (see this article for an explanation of what a ‘protected characteristic’ is). Pregnancy and maternity discrimination is illegal, and those on maternity leave have special protection in a redundancy situation. Wednesday, 27 February 2019 . ). The employment tribunal had found that the unfavourable treatment about which the employee brought her claim (not receiving the email in question) would not have happened had she not been on maternity leave – to adopt the legal jargon it would not have arisen “but for” the fact that the claimant employee was on maternity leave. Does an employee made redundant while on maternity leave have any special rights? Advertising specifications It also proves that, sometimes, the correct reading of legislation is reassuringly obvious. The EAT accepted that to send an important and urgent work message to an employee in an email which the employee cannot access for some reason amounted to unfavourable treatment “one way or another”. If this is the case, and an employee who has been selected for redundancy is on maternity leave, they have the right to be offered any suitable alternative job that is available, before any other employee. This right is only available to women on maternity leave who are put at risk of redundancy. Also, this was not a case where the fact that the employee was on maternity leave had “operated on the employer’s mind” – i.e. Jackson was on maternity leave when, along with a number of colleagues, she was put at risk of redundancy. Email Newsletters HR (General) You should not be selected for redundancy because of your pregnancy, or your maternity, adoption or shared parental leave. Recruitment & Resourcing Guest. Personnel Today has launched a new email newsletter for 2020, focusing on all aspects of diversity and inclusion. Big Law And Associate Layoffs: Sensible Cost Control Or A Misstep? The relevant legislation – regulation 12A(4) of the Maternity and Parental Leave etc Regulations 1999 – does allow for employers to be entitled to have “reasonable contact” with their employees whilst on maternity leave. If you are being made redundant because you are on a maternity leave, the dismissal will be a maternity discrimination, which is unlawful under the law of Equality. Training The employment tribunal held that Mrs Simpson had not been unfairly dismissed. Employment law - HR E-Brief 06-04-2011 The Employment Appeal Tribunal (EAT) has ruled that it is unlawful sex discrimination to treat a woman on maternity leave more favourably than other employees, unless the treatment goes no further than is reasonably necessary to compensate her for a disadvantage consequent on her absence on maternity leave. Occupational Health In some cases, … An employee who is made redundant while on maternity leave is entitled to be offered (not just invited to apply for) a suitable available vacancy with her employer (or an associated employer). Legal Service member called our specialist employment lawyers about her selection for redundancy whilst she was on maternity leave. Where an employee on maternity leave is at risk of redundancy, she is entitled to be offered any suitable alternative vacancy available in priority over any other “at risk” employee. Search . Diversity & Inclusion This gives the woman priority over other employees who are at risk of redundancy, … Print . An alternative vacancy must be both suitable and appropriate for the woman to do in the circumstances, and the terms and conditions must not be “substantially less favourable”. Summary of claim: the Claimant informed her employer that she was pregnant on 9 December 2015. Against the backdrop of continuing economic uncertainty, there has been a steady flow of redundancy decisions from the Employment Appeal Tribunal (EAT) over the last few months. Business Department research has suggested 54,000 women may lose their jobs due to pregnancy or maternity … Charles Wynn-Evans outlines how employers can nevertheless face a tribunal claim. Even if the redundancy situation is genuine, a discrimination during the selection criteria will deem it as an unfair dismissal. HR Business Partner The case concerned Regulation 10 of the Maternity and Parental Leave Regulations 1999, which states that, if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave, the employee is entitled to be offered (not just invited to apply for) a suitable available vacancy with her employer (or an associated employer). While the employer would have to consider what it knew about the employee’s personal circumstances and work experience, it was up to the employer, knowing what it did about the employee, to decide whether or not a vacancy was suitable. The first case, Nicholls v Rockwell Automation Ltd, considered whether an Employment Tribunal was entitled to closely examine the scoring in a redundancy selection process in order to determine whether the dismissal was unfair. the work to be done must be both suitable for the woman and appropriate for her to do in the circumstances; and. Freear v Vossloh Cogifer UK Ltd 1800747/2016. Employers should ensure that they have evidence of why they consider a new role is not “suitable and appropriate” and document their reasoning in case their decision is challenged. The Personnel Today Awards Case law indicates that protecting a woman from such redundancy selection could give rise to sex discrimination claims from men who are included in the selection process. Ben McCarthy . The recent case of Simpson v Endsleigh Insurance Services Ltd emphasises that, not only is this a misconception, but the right of a woman on maternity leave to suitable alternative vacancies is not automatic. Privacy policy In this case, the fact that the new role was in a different location was sufficient to render it “substantially less favourable”, but one can envisage situations in which this might not be the case (eg, if the new location were more easily commutable). Personnel Today has launched a new email newsletter for 2020, focusing on all aspects of diversity and inclusion. Employment Law People Analytics Carley Kerrs-Walton – Employment "Carley was superb at taking my brief, understood everything I was asking and gave me a very in-depth assessment of where I stood legally. RSS feeds Implied terms can arise from custom and practice and if employers adopt regular patterns of payments this may give rise to a contractual term. Compensation & Benefits You are here: Home > Legal services for business > Employment Law > Dismissal and redundancy > Maternity and redundancy. You still build up your holiday entitlement as normal during maternity leave. If a pregnant employee qualifies for statutory maternity pay and is made redundant before going on maternity leave but after the beginning of the 15th week before the baby is due, you will need to pay her statutory maternity pay (SMP) as well as any redundancy payment. What counts as reasonable contact will of course depend on the particular circumstances. OH&W subscription terms. There may be alternative jobs that can be offered to any employees who are affected by the reorganisation or redundancy process. Later that day she was told that her position was at risk of redundancy, and was … Maternity and redundancy. How an Employment Law Solicitor at Martin Searle Solicitors obtained compensation for a woman unfairly selected for redundancy due to maternity discrimination. HR Shared Services She failed to apply, claiming that the relevant correspondence had piled up at her home while she was recuperating elsewhere. Redundancy and maternity leave – are employees on maternity leave "untouchable"? the terms and conditions of her new job, including the capacity and place in which she is to be employed, must not be “substantially less favourable”. Health & Safety Learning & Development There have been two recent cases which are of interest to employers needing to embark on redundancy exercises. Redundancy and Maternity . It also appeared to the EAT that the situation might simply have arisen due to an administrative error. Employee Benefits Awards While this decision provides welcome clarification for employers, they should still consider alternative vacancies in these circumstances very carefully – suitability and favourableness will not always be clear cut. However, at the Employment Appeal Tribunal the employer succeeded on the basis that the employment tribunal had applied the wrong approach to assessing whether the employer’s actions were discriminatory. In this post we look at five examples of successful Employment Tribunal claims for pregnancy and maternity discrimination that were made in the Employment Tribunal in 2017. Terms and conditions, • Employee Benefits This guide will explain the key issues for employers dealing with redundancy during maternity leave, to help ensure fair and lawful handling of the process and to reduce the risk of tribunal claims. Wellbeing However, the protection will be triggered once the employee on maternity leave is provisionally selected for redundancy following a selection process. During the redundancy consultation process she was invited to apply for a position in Cheltenham. Question I have been working for my employer for six years as a marketing assistant. RSS feeds Employers must keep the business active until the maternity leave is finished and then notify the employee. Employers should ensure that they have evidence of why they consider a new role is not “suitable and appropriate” and document their reasoning in case their decision is challenged. Endsleigh accepted that the new position was suitable for Mrs Simpson, but argued that it was less favourable to her in relation to its terms and conditions – eg, she would have to relocate and do a seven day shift. Employee Relations Case Law Update: Maternity Leave & Constructive Dismissal. Home / Resources / End of Employment Contract / Case Law Update: Maternity Leave & Constructive Dismissal. Features list 2020 Change Management An employee on Maternity Leave or Additional Maternity Leave cannot be notified that they are being made redundant. Wellbeing Employment law updates Maternity leave and redundancy. Employee Benefits Awards Ultimately, the stakes remain high – if an employer breaches Regulation 10 and then dismisses the employee on maternity leave, the dismissal will be automatically unfair. We are a small company and it is only me, another marketing assistant and the marketing manager in the team. Organisational Development Ahead of an employee going on maternity leave, employers may wish to discuss with the employee what degree of ongoing contact the employee wants in terms of continuing to receive details of social events, company newsletters and the like. This provision is the basis upon which it is legitimate for an employer to contact an employee during maternity leave to address issues such as arrangements for the employee’s return to work at the end of the maternity leave period. When the economy is struggling, redundancies can and will occur. Therefore, it argued that there was no obligation to offer her the post. However, the employment tribunal’s decision was flawed in its approach to causation – the reason for the unfavourable treatment and whether it was the employee’s being on maternity leave and therefore discriminatory. Regulation 10 states that this right to a vacancy depends on two conditions: In this case, Endsleigh closed down several branches, including Mrs Simpson’s place of work in London, while she was on maternity leave. Employee Relations HR Consultant Employment Law However, if it’s essential due to the coronavirus pandemic (or for other … These reforms … This includes absent employees, such as those on maternity leave. Workforce Planning, • About Personnel Today Contact us The EAT 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, applying the correct analysis with additional evidence if necessary. Payroll However, as these cases demonstrate and regardless of the eventual result in Jackson, the employer’s obligations are ongoing. HR Consultant Redundancy while on maternity leave A Which? Rather optimistically, Mrs Simpson argued that, if there was a suitable post, this should have been offered to her even if the terms and conditions of the contract were less favourable. As the EAT noted at the appeal stage, the delay of only a matter of days in the employee receiving the email did not disadvantage her – it is therefore unclear what level of compensation might be recoverable, whether in respect of financial loss or injury to feelings, if the claim is upheld. The employer notified the employee of various opportunities for redeployment but these were sent to her work email address. Apprenticeships A redundancy has not occurred if the employer has ended the employment within one month of the end of the apprenticeship. Terms and conditions, • Employee Benefits pay them maternity pay as well. In her claim, she argued that she should have been offered the new role in Cheltenham. People Analytics Employee Benefits Live, • Occupational Health & Wellbeing This week, Katie looks at redundancy and maternity leave. UK HR ebrief - Redundancy case law: recent developments. What counts as reasonable contact will of course depend on the particular circumstances. To make things clearer, the law says: If you’re on maternity leave, you have the right to return to the same job you had before you left. HR Shared Services This year is set … influenced its actions – or where the employer had applied a discriminatory approach or criterion to the employee. 1685 Hits. Learning & Development 5 minutes reading time (960 words) Protection from redundancy during maternity leave. Download our guide to redundancy rights when pregnant or on maternity leave (PDF, 299KB, 13 pages). Eight months ago, I was given a pay rise, in recognition of my hard work and for consistently exceeding my monthly targets. United Kingdom; Employment law - HR E-Brief; 20-02-2013. 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