Answering your questions on difficult discrimination issues in employment. Names and circumstances have been changes to protect the identities of those involved.

Question
I have been working for my employer for six years as a marketing assistant. We are a small company and it is only me, another marketing assistant and the marketing manager in the team.

Eight months ago, I was given a pay rise, in recognition of my hard work and for consistently exceeding my monthly targets. This year is set to be the strongest financial year yet, because as a department, we have exceeded our annual target by 12%.

I found out I was expecting my first baby shortly after the pay rise. I advised my employer I was pregnant on 1st February. My line manager congratulated me and seemed pleased for me. However, later on in the day I overheard her in the staff room saying she was concerned about how this would affect the responsibilities expected from me and made a comment about my recent pay rise.

I am now on maternity leave. Last week, I was called in to the office and attended a meeting with HR, where I was told that my role is at risk of redundancy due to a companywide internal restructure. I was told that the need for two marketing assistants will no longer be required as a lot of the work I am responsible for is going to be given to the marketing manager. I was informed that, as a result of the restructure, there will be four roles being made redundant, including one marketing assistant. I was told that at this time, there are not any suitable alternative vacancies for me within the company but if one does come up, I will be invited to apply for it.

I have now received written confirmation that I have been made redundant. The other marketing assistant is still working. She has only worked for the company for eighteen months.

I am concerned about why my role has been made redundant when the company is going from strength to strength, and why it was me who was made redundant. I have never been subjected to a disciplinary and I have consistently hit all targets.

It feels like I have been made redundant because I am pregnant. I am most concerned about how this effects my rights and maternity pay. Is there anything I can do about this? What are my rights if my employer decides to make me redundant?

Answer

Protection when on maternity leave

While on maternity leave, you have the following rights and protections that are relevant to this situation:

• The right not to be unfairly dismissed, or dismissed or selected for redundancy for a reason connected to your pregnancy or maternity leave;
• Not to be treated unfavourably for a reason connected to your pregnancy or maternity leave;
• Not to be harassed on the grounds of your sex; and
• If fairly selected for redundancy, the right to be offered a suitable alternative role if one is available.

Applying these to your situation:-

The decision to make you redundant:

Redundancy is a potentially fair reason for dismissal, even when you are on maternity leave.  Therefore, the first thing to ascertain is whether there is a ‘genuine redundancy situation’.  This will arise in the following three situations:

1. When the business closes down temporarily or permanently
2. When the business moves and you cannot get to the new place of work
3. When fewer employees are required for a particular type of work.

Your employer is entitled to restructure their business as they see fit, and it is often difficult to prove whether there is a genuine redundancy situation or not.

However, the burden is on your employer to establish the genuine reason for your dismissal.  If you are the only one selected for redundancy, or your employer is unable to demonstrate that any of the three situations above apply, then it may struggle to do this.

In these circumstances, you have an argument that you are being dismissed not because of redundancy, but because of your maternity leave, or a reason related to it (such as your absence).  The fact that the other marketing assistant was not placed at risk of redundancy and remains employed, and the comments made by your manager when you told her you were pregnant, are factors pointing toward this, which your employer will need to explain.

The Redundancy Process:
Although it shouldn’t happen, it’s not uncommon for employees on maternity leave to be ‘forgotten about’ and kept ‘out of the loop’.  If your employer fails to properly engage you in the process because you are out of the office, then this could be ‘unfavourable treatment’ for a reason related to your maternity leave.

As you were one of two people undertaking the same type of work, your employer must use a fair selection criteria to decide which person to place at risk of redundancy.  It must not automatically choose you because you are on maternity leave.

In order to be fair, selection criteria should be objective and capable of measurement.  Common examples include performance and attendance records.  However, you shouldn’t be placed at a disadvantage because you have taken maternity leave.  For example, any absence related to your pregnancy or maternity leave should be disregarded when scoring you against the criteria.

As a matter of best practice, your employer should consult with you about your selection, and consider alternatives to dismissing you such as ways of avoiding redundancy and alternative roles.  You should also be given an opportunity to comment on the selection criteria used and your scores.  If you have not been provided with a copy of this information, then you should ask to see it.

If you have been selected for redundancy because of your maternity leave, scored poorly because you have been placed at a disadvantage in the selection process as a consequence of your maternity leave and/or your employer has failed to provide you with information about the selection criteria and your scoring, you may have a claim that you have been automatically unfairly dismissed and/or discriminated against.

Alternative Roles within the Company:
If you are selected for redundancy while you are on maternity leave, your employer is legally obliged to offer you a suitable alternative vacancy, if one exists. You should not be expected to interview for any roles because you must be given priority over other workers who are being made redundant, who are not on maternity leave.

If your employer fails to offer you a suitable alternative role, or subjects you to a competitive interview process, then your dismissal is likely to be automatically unfair and discriminatory.

Harassment
You have the right not to be subject to unwanted conduct related to your sex that is intimidating or humiliating for you or that creates a hostile environment for you.    The comments made by your manager when you first informed her of your pregnancy might amount to harassment on the grounds of your sex (because they concerned your pregnancy) if you can show that they caused you upset or distress. 

However, in order to pursue this, you would need to issue a claim within three months’ from the date when these comments were made, so it is likely this claim may now be out of time.

Your rights with regards to Maternity Pay
If you are dismissed during your maternity leave, the leave will come to an end. However, your employer must continue to pay your statutory maternity pay (‘SMP’) for the remainder of the SMP period (or until some other disqualifying event such as you obtaining a new job). This is because SMP entitlement, once triggered, is not dependent on remaining an employee after the Qualifying Week.  The Qualifying Week is the 15^th week before the baby’s due date.

The position is less clear in relation to any contractual maternity pay you receive – this will depend on the terms of your contract and any relevant scheme rules.  Normally, this will end when your employment terminates.  However, you will continue to receive SMP as set out above.

You will also be entitled to a redundancy payment. Your employer may offer you a contractual redundancy payment or the statutory redundancy. You should check with your employer regarding this.

Obviously, if your dismissal has been unfair or discriminatory in anyway then you are entitled to compensation for losses you suffer as a consequence which will include loss of any contractual maternity pay, loss of future earnings and an injury to feelings award.

Summary and next steps

The reasons why there may be a claim you could potentially bring against your employer are:

• There is no genuine redundancy situation
• You were selected for redundancy because you are pregnant/on maternity leave
• You were not offered a suitable alternative vacancy

There are strict time guidelines for making claims in an employment tribunal. You will need to submit your claim to a tribunal within 3 months from the date of the dismissal or the discrimination. Therefore, I would suggest that you obtain full legal advice in order to be advised of the full merits of your claims as soon as possible.

You should also consider appealing your employer’s decision to select you for redundancy (if you have been given a right of appeal) and/or raise a formal grievance following your employer’s internal grievance process.   If you unreasonably fail to do this, it can result in a reduction in any compensation awarded to you if you were to succeed with a claim.

All discrimination claims are very fact specific and this note is intended as a general guidance only. If you have any discrimination issues, we would recommend seeking legal advice. Our employment team will be pleased to assist you, and can be contacted at employment@herrington-carmichael.com or 0118 977 4045.