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Original poster

now confused about this maternity redundancy thing - selecting the mat leave woman is discriminatory to the man?

19 replies

finefatmama · 11/04/2011 21:42

"Male claimant and female comparator absent on maternity leave in redundancy selection pool ? On one criterion ("lock up") Claimant given low (actual) score but comparator given (notional) maximum score since because of her absence at the measurement date no actual score was available ? Claimant selected, but if comparator had not been given the maximum score for lock up the scores would either have been level or she would have been selected ? Tribunal holds that the different scoring method constituted unlawful sex discrimination and the Claimant had been unfairly dismissed ? Claimant awarded compensation for over three years' loss of earnings ? Appeals on liability and remedy."

I'm hoping the HR experts can help unconfuse me on this one. We are about to consult on redundancies and I sort of had it in my head that there were circumstances where the above scoring method (or equivalent) would be the proper way to treat women who were on maternity leave. It now appears that automatic protection for pregnant women is not as cut and dried as I assumed it was.

OP posts:

Grevling · 11/04/2011 22:57

If there are 30 shelf stackers and they just want there to be only 20 then the "protection" doesn't exist.

Its only if there are "new" jobs for the people to take up (i.e. suitible alternatives). If they simply want to reduce the number of roles then the mat leave person can be made redundant.

If they wanted 20 "shelf stacker / cashiers" then the mat leave person would be given a new role as there is a suitible alternative in that all 30 shelf stackers were made redundant but 20 were offered alternative employment in the new roles.

Or at least that is how I understand it (which is probably wrong....)

SuperSara · 11/04/2011 23:38

Hi, I'm sorry I don't have any advice or ability to explain the rules properly, but it looks like my husband will be losing his job due to the ridiculous 'maternity protection' regulations. :(

He's a project manager with a consultancy working on high-value IT projects. He's been there about 7 years) and is well thought of, succesful and highly respected (so I'm told by his lovely colleagues).

Last year, they employed another person in the same position due to a new contact which meant too much work for one manager. The new lady is really nice (I've met her socially) but far less experienced, less well qualified and generally less capable in such an important position as it's her first post at such a senior level, but she can do her job satisfactorily, so all is ok.

Well, I should say 'all was ok'. The company lost the new contract they won as the project was curtailed due to public spending cuts. Last week the company announced that it would have to make redundancies and it expects that to include a project manager. Today the new person has announced she's just gone 12 weeks pregnant.

So that's pretty much it then for my OH's job as far as I can see. There will be one job and the lady is automatically entitled to it. :(

Sincere apologies to OP for somewhat hijacking this thread, but I'd also love to hear what the experts on such matters have to say.

prh47bridge · 12/04/2011 00:51

SuperSara - No she is NOT automatically entitled to the job.

Contrary to what many people seem to think, pregnant women are NOT protected against being made redundant. The only protection is that their pregnancy cannot be used as a reason for selecting them for redundancy. So if an employer is reducing the number of bottle washers from 30 to 25 they cannot just get rid of the 5 who are on maternity leave. However, if the employer decides to get rid of the bottle washers who break the most bottles and that happens to be the 5 on maternity leave that would be perfectly legal.

In your husband's situation there are two project managers and one of them may be made redundant. The fact that one of them is pregnant must not be a factor in deciding which one to make redundant. If they decide that the fact she is pregnant means they should make her redundant she would be able to claim for unfair dismissal and sex discrimination. On the other hand, if they decide the fact she is pregnant means they should make your husband redundant he will be able to claim for unfair dismissal and sex discrimination.

finefatmama - I hope the above helps to answer your question as well. Pregnant women are NOT protected against redundancy. The only protection is that their pregnancy cannot be used as grounds for selecting them for redundancy.

RibenaBerry · 12/04/2011 09:36

Is this the Eversheds case you're quoting there OP? It's not actually that surprising. What happened was that, in a redundancy scoring, there was a woman on maternity leave and a man. There was a criterion for 'lock up' (time between work and billing, or something similar) where there were no current figures for the woman. So they gave her the maximum score. That maximum score made the difference between her being selected for redundancy and the man being. This was found to be unfair on the man, because it went further than was objectively nessary to cancel out the effect of being on maternity leave. They could have, for example, compared figures for the last time they were both in the office.

There is no automatic protection for pregnant woman on redundancy consultation. You just need to ensure that they are not disadvantaged by being pregnant (e.g. pregnancy related illnesses shouldn't go into the scoring for absence, if that's one of your headings).

For women on maternity leave, the position is slightly more complicated and you should search the archives here on 'regulation 10' but the generally accepted view is that a woman on maternity leave can be selected for redundancy (as seems to have been accepted in the Eversheds case). If so selected, however, she gets priority for redeployment over other people.

Original poster

finefatmama · 12/04/2011 14:17

RB, I was referring to the Eversheds case actually. I am now clearer on the way forward. Big thanks to everyone for clarifying. Like SuperSara, I assumed that we had to keep the ladies on mat leave (one or two would not have been selected otherwise). We were going to interview in order to determine suitability but I will have to suggest past performance. Absence is a bit tricky as some absence is potentially DDA related. I'll have to inform the insurance company first anyway and hope they have legal HR bods to support.

OP posts:

RibenaBerry · 12/04/2011 14:37

I do recommend that you get professional advice on this situation if you possibly can- it's very difficult, especially if there are DDA issues.

If you had automatically kept on the women on maternity leave and dismissed men instead, that would have been clear sex discrimination against the men, so well done for checking!

SingingSands · 12/04/2011 14:42

Agree with RibenaBerry, she has it spot on.

RedundeeMummy · 13/04/2011 21:15

I thought I was protected on maternity leave and have returned to find my job will be made redundant in 6 months whereas my male maternity cover has been made permanent!
I work for a public sector organisation that has suddenly realised it has to make cuts and the gravy train is over.
I thought I was safe but I'm not. I'd speak to CAB if and when it happens as they've been great with me - albeit they haven't given me good news. :(
I'm furious and venting on the web as I feel like a leper at work and unable to talk to anyone about it as I'm the scape goat and they're safe...

diaryofaredundee.tumblr.com

Nightsdrawingin · 20/04/2011 19:41

I went to get legal advice yesterday as am facing redundancy/redeployment on maternity leave - was directed to the Directgov website which says:

If you are made redundant whilst on Statutory Maternity Leave then you have special rights. You have the right to be offered any suitable alternative job in the company. This is even if there are other employees that might be more suitable for the job. If you are offered a new job, you are still entitled to the four-week trial period, which should start when you return from Statutory Maternity Leave.

So you do have some protection. But it ends the moment you come back, and doesn't exist whilst you are pregnant as far as I know.

BooBearBoo · 20/04/2011 19:52

Nights - everyone has those rights, not just those on maternity leave.

Being on mat leave or pregnant DOES NOT protect you from redundancy.

Redundee - if you male cover is keeping YOUR job then you should not be being made reundant????

RibenaBerry · 20/04/2011 20:22

Nights is right - as I mentioned in my earlier post those who are on maternity leave get priority for redeployment. But BooBear is also right - being on maternity leave does not protect you from redundancy as such, there is just this one additional right.

Nightsdrawingin · 21/04/2011 11:50

Boobear - everyone can't have those rights, if everyone was entitled to be offered a suitable alternative job over other employees then no one could ever be rejected for an alternative job.

I'm not saying you can't be made redundant on maternity leave, you clearly can, but you do have extra protection as regards redeployment. Can't really see what you mean by saying everyone has those rights - it says clearly on the website that this is a special right.

Nightsdrawingin · 21/04/2011 11:55

Redundee - are you a member of a union? I found information somewhere (might have been Maternity Action which has a number of factsheets, try googling them) which said you might have a case to answer if it appears that they have delayed your redundancy until you have come back from M/L and therefore are no longer protected - as if you were on maternity leave you should have been redeployed to your locum's job if that was a 'suitable alternative job', and given priority over him.

Nightsdrawingin · 21/04/2011 11:56

RibenaBerry · 21/04/2011 12:36

Nights - I think BooBear was looking at the other bits of that statement. Everyone does have the right to have their employer look for redeployment and to a four week trial period. It's just the bit about priority over other candidates that's special for maternity leave.

BooBearBoo · 21/04/2011 15:10

Nights - yes sorry I was referring to the other bits as Ribena says. I didn't read it carefully enough to spot the priority bit... wouldn't guess I was a lawyer huh !!!

SuperSara · 21/04/2011 21:06

Having read the other posts in this thread, I fail to see how my husband's job can be saved?

There are 2 jobs at the moment, in around 6 months (about the time that his colleague's baby is due) there will be 1 job.

How, if someone on maternity leave is entitled to whatever suitable job exists and there are 2 people in contention for 1 job, is my husband NOT going to lose his job?

I'm very confused and worried by it all. :(

BooBearBoo · 21/04/2011 21:42

Because the suitable alternative employment question kicks in later. The first step will be for the co to go through the selection criteria/matrix and choose who they want to keep, which may be your husband (for example if he has a better disciplinary record, a better attendance record (excluding mat leave obviously), better target hitting record, worked their longer etc etc - all depends on the point scoring criteria they use).

It is only once they have picked someone for redundancy that they have to look at SAE for them.

SuperSara · 21/04/2011 22:01

BooBearBoo, thank you!

I hope it works that way; he'll be safe if so.

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