A position, held by an employee who is currently on maternity leave, is to be made redundant. How should the employer handle the situation to avoid the risk of a discrimination claim? Esther Smith and Martin Brewer advise.
We are currently in a redundancy situation and have been meeting with staff in one part of our business where 15 jobs are at risk. One of those positions is held by a lady who is currently on maternity leave (hers is a field position out with the main office). We have already met with her to inform her that her job is at risk.
Unfortunately the next step is to tell her that her position will be redundant unless an alternative can be found and this is the difficult bit. Her maternity leave does not end until March – her redundancy would take effect at the end of her leave. She has indicated that she may be looking to do something different and may be interested in part time, but not formally as she is still unsure.
Due to another maternity situation, a position needs to be filled in the office. I know that this lady will be interested in it. I also know that she is not the right person for the job. What’s more we cannot wait until she makes up her mind as to what she would like to do. The position is a key one and needs to be filled asap.
What are my options here? Can we ask her to apply for the job and go through an interview? If we applied the same principle to all the redundancy candidates who are interested in alternatives, would that make the process fair? Can we turn her down on the grounds that she does not have the skills to do the job?
Esther Smith, partner, Thomas Eggar
There is one rather peculiar rule that applies when dealing with redundancy where you have people on maternity leave. Where the role of a person on maternity leave becomes redundant but there is a suitable alternative position available, the person on maternity leave is to be given first refusal of the suitable alternative position.
So, the question here is whether or not there are any suitable alternative roles, and whether in particular the role in the office is, on paper, a suitable alternative. If it is, the employee must be given first refusal of it, even if she is not due to return just yet. The fact that you do not consider that she would be any good at the role is not the same as saying that it is not suitable as the suitability is an objective test looking at the nature of the two roles and comparing them. Your assessment of her inability is a subjective one based on your opinion and if you do not offer her a suitable role on this basis you may well face a claim.
If the role in the office cannot in any way be described as objectively suitable then there is no obligation to offer it to her, but of course if her role is redundant she should have the right to apply for any vacancies in the same way as all other employees and if she is not selected for this office role on the grounds of her current absence, and the fact that she may make a flexible working request, this would of course be linked to her pregnancy and could result in a discrimination claim.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner, Mills & Reeve
This is, I know, a common difficulty. The legal position is very clear. You must offer this lady first refusal on any suitable vacancy irrespective of the fact that she is on maternity leave. She must not be put into a competitive situation for such vacancies. You may assess that the job you refer to is not suitable and, in the absence of any suitable vacancies, she will be redundant but you must consult with her about that.
I should add that the fact that you need the role filled ‘asap’ is irrelevant. If there was no redundancy situation and she was doing that important role and then went on maternity leave, you would just have to deal with it. The fact, therefore, that the absence on maternity leave happens to coincide with a redundancy situation is irrelevant. If she is appropriate for the role ignoring the maternity leave, then give her the job and deal with the fact that she is on maternity leave as you normally would.
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