Redundancy Consultation and Maternity Leave – Don’t get caught out!

14 March, 2019

The recent case of SW Yorkshire Partnership NHS Foundation Trust v Jackson is a reminder to employers of the potential dangers of treating those employees on maternity leave unfavourably during the course of a redundancy consultation exercise.

Whilst on maternity leave, Ms Jackson was one of several members of staff put at risk of redundancy. The HR department sent details of redeployment opportunities to her inaccessible work email address, which she did not find out about for several days. Although these actions caused no substantial harm to Ms Jackson, the tribunal (and subsequently the EAT) held that, they had caused her legitimate concern which amounted to unfavourable treatment under the Equality Act 2010.

Whilst the tribunal found that the Claimant did not get the email “because” she was on maternity leave, the EAT held that this was the wrong test for causation. The EAT held that the tribunal should have considered the reason why the email was sent to the Claimant’s work email. The “reason why” test can be satisfied where a rule is applied which is inherently discriminatory, or where the protected characteristic has actually operated on the discriminator’s mind. The case was remitted to the tribunal for further findings on this point.

Therefore, whilst we have no definitive ruling on the case at this stage, comments made by the tribunal and EAT do show that an email sent to an inaccessible email address can constitute unfavourable treatment, satisfying at least that part of the test for discrimination.

When managing redundancy consultations involving those on maternity leave, in order to mitigate the risk of claims such as these, employers should keep the following issues in mind:

  • Consultation –Ensure that you keep in touch with, and fully include, employees on maternity leave in the redundancy consultation process. As the recent Jackson case highlights, consideration should be made to corresponding with employees via personal email accounts and holding meetings via telephone or at off-site locations if the employees would prefer not to attend the office.
  • Selection criteria –Ensure that any selection criteria are objective and non-discriminatory and applied fairly. For example, any absences due to pregnancy or pregnancy related reasons should be discounted if “absence” is used as one of the criteria.
  • Suitable alternative employment – Remember that employees on maternity leave should be given priority over other employees who are also at risk of redundancy when it comes to being offered suitable alternative roles. If an employer does not comply with this requirement then the employee will have a claim for automatically unfair dismissal. The government is currently consulting on whether to extend this protection to cover the period from when a woman first informs their employer in writing of their pregnancy to six months after their return to work from maternity leave.
  • Statutory maternity pay – Remember that once an employee has qualified for statutory maternity pay (“SMP”), you must continue to pay her SMP for the remainder of the SMP period (or until some other disqualifying event such as the employee starting a new job) even if the employee is made redundant before or during her period of maternity leave.

For more information please contact Camilla Beamish.