In this blog, we will discuss what legal barriers there may be to an extension of the policy to workers in any health or social care setting within the NHS.
Read MoreThe Employment Appeal Tribunal, in allowing an appeal in Mrs G Dobson v 1) North Cumbria Integrated Care NHS Foundation Trust 2) Working Families – Intervenor, has held that the ‘childcare disparity’ existing between men and women should be taken into account in employment cases.
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Facing redundancy is a bewildering experience at the best of times, even more so if you are on maternity leave and may have been out of the workplace for some time. The law recognises that women on maternity leave can be particularly vulnerable to redundancy and offers some additional rights by way of protection. Our solicitor, Sacha Carey, addresses some of the questions commonly asked by women on maternity leave facing redundancy.
The short answer is yes. Contrary to popular belief, you can lawfully be made redundant during your maternity leave, provided the redundancy is genuine and your employer follows a fair redundancy process. If you are selected for redundancy because you are pregnant or on maternity leave, this will count as an automatic unfair dismissal, as well as discrimination.
Firstly, your employer must use non-discriminatory selection criteria to decide which employee(s) to make redundant. This could include skills, qualifications and disciplinary record. If using criteria such as attendance, absence or performance, your employer must discount any absence or performance issues that are caused by your pregnancy or maternity.
Your employer must also consult with you during your maternity leave about the proposed redundancies, giving you as much warning as possible. This will involve individual consultations, as well as collective consultations if your employer is making 20 or more employees redundant at the same time.
Your employer must talk to you about the reasons for the redundancies and the selection criteria that they will be applying. They should also let you know how your redundancy selection assessment was carried out and allow you to put forward any suggestions you might have for alternatives to redundancy.
Finally, your employer should give you a preferential right to any suitable alternative vacancy that might be available by offering the position to you first, before those who are being made redundant but are not on maternity leave or pregnant.
In order to be considered suitable, the vacancy must be no less favourable than your previous job in terms of location, status and terms and conditions. It is important to note that if you do unreasonably turn down an offer of suitable alternative employment, you will lose your right to a redundancy payment.
Find out more about your financial entitlement in the event of a genuine redundancy here.
If you qualify for Statutory Maternity Pay (SMP), your employer is liable to continue paying this for the remainder of the SMP period, even if you are made redundant. However, any enhanced contractual maternity pay (in excess of SMP) is likely to cease when your employment is terminated.
If you are facing redundancy during maternity leave and your employer has not followed a fair redundancy procedure, or you have reason to believe that this is not a genuine redundancy, you may have a claim for unfair dismissal, automatic unfair dismissal and/or maternity discrimination.
There are strict time limits for bringing these claims in an employment tribunal, so it is important to act quickly. We are very experienced with advising employees who find themselves in this difficult situation and pride ourselves on our compassionate and straightforward approach. We would love to speak to you about how we can help, so please do get in touch.
Should you wish to know more about your rights during pregnancy and maternity leave, you may find the following link useful https://www.acas.org.uk/your-maternity-leave-pay-and-other-rights
Ergo Law, Edinburgh based employment law specialists. We specialise in advising both on the issues which arise in the workplace on a daily basis as well as on more unusual or complex situations.
Ergo Law Limited is a company incorporated in Scotland with company number SC517035, authorised and regulated by the Law Society of Scotland.
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Employers need to handle redundancies with sensitivity and of course, in accordance with the law. Here, we’ve put together a few key tips to help with managing this challenging task.