A leading law firm says recession stricken manufacturing firms can make women on maternity leave redundant but must follow the law to the letter.
Mace & Jones employment law associate Victoria Othen said making women on maternity leave redundant may be necessary for many employers if their business is to survive the credit crisis. Only this month the British Chambers of Commerce predicted that unemployment will surge from its present level of 2 m to 3.2m by the second half of 2010.
Even if redundancies are inevitable, it is crucial to manage the process properly, she said. That is doubly the case for any redundancy, however legitimate, if the woman is off on maternity leave. Hasty or ill-considered decisions could lead to expensive compensation pay outs and a huge amount of lost management hours.
Ms Othen said there is nothing in law which precludes making an employee on maternity leave redundant.
The danger for bosses is that it is automatically unfair to dismiss or to select an employee for redundancy for a reason related to pregnancy or maternity, she said. Selection criteria can relate to maternity more easily than one might imagine; for example, a poor attendance record or performance during the initial stages of pregnancy may have to be disregarded.
Ms Othen said a woman acquires additional protection by taking maternity leave.
Automatic unfair dismissal in these circumstances does not require a period of minimum service, she said. Nor does it involve scrutiny of whether an employer behaved reasonably. If an employee can demonstrate that redundancy selection criteria were applied, even unintentionally, in a manner which gave her comparators a discriminatory advantage, this will give rise to a claim. Indeed, in some circumstances, there is a duty to positively discriminate by giving an employee on maternity leave an offer of alternative employment in preference to any other redundancy candidates.
Ms Othen added that an employee could also bring a case under the Sex Discrimination Act which carries compensation for injury to feelings and any resulting psychiatric injury. Such awards are not uncommon in cases where female employees are particularly vulnerable to stress and depression after the birth of a baby.
For any employer, this is a high-risk situation which needs careful planning and a sensitive approach, she said. If managed correctly, employers will be able to handle the redundancy selection and consultation process efficiently and will minimise the risk of resulting litigation.
Ms Othen urged employers to devote time and resources to redundancy and reorganisation procedures.
Legal advice is important here, perhaps more so than in any other employment context, she said.
For further advice on managing redundancy of any employment law related issue contact Victoria.firstname.lastname@example.org or any member of the Mace & Jones employment law team in Manchester: 0161 214 0500 Liverpool: 0151 236 8989 or Knutsford: 01565 634234