Redundancy and maternity leave

Year Published: 2021

Charlie Wood examines an Employment Tribunal case on redundancy and maternity leave. In this case, an employee was made redundant after announcing her pregnancy and was found to have been treated unfavourably.

In February 2019 the claimant told her colleagues she was pregnant – however unfortunately this news was not well received by senior management. The director of operations asked the claimant when she had stopped taking contraception and how she thought the pregnancy would affect her long-term career prospects. The claimant also claimed that the chief executive said they should ‘put a wager’ on how much weight she would gain during her pregnancy. I feel like I am stating the obvious here, but that is most definitely not the appropriate response to one of your employees announcing their pregnancy.

As you would expect, the Employment Tribunal considered these comments as unfavourable treatment because of the number of them that were made, the nature of the comments, the fact they were made by three male colleagues, and the fact the claimant was so upset that she raised the issue with three separate people. Prior to going on maternity leave in June 2019, the claimant raised these issues informally with the head of HR, Ms Kilcoyne. Whilst on maternity leave, the respondent company underwent a restructure but nobody contacted the claimant to advise her of this. A new chief executive, Mr West, was appointed as part of the restructure.

On 20 September 2019, Ms Kilcoyne informed the claimant of her potential redundancy however on 26 September the claimant discovered a new organisational chart which did not include her role – indicating to the claimant that her role has already been removed despite not yet being consulted on the redundancy process. It is always important to remember that any employees on maternity leave should be treated in exactly the same way as employees in the office. Do not just exclude them from internal processes; or worse, forget about them simply because they are on maternity leave. Here the claimant should have been informed of the proposed redundancy process in the same way as other staff and fully consulted on any proposed changes. However, failings in the process aside, it would appear in this instance that the process was constructed simply to facilitate the claimant’s exit from the business.

On 7 October Ms Kilcoyne sent to the claimant a job description for the director of marketing role, which was a lower-level role than her current role. The claimant was told that the salary for this role was £80,000 which was £20,000 less than her current salary. However the Tribunal found that no one was able to explain how the new role differed from the old role and how they justified a 20% reduction in salary. Again, it was determined that this role was made purposely unattractive to dissuade the claimant from taking it.

The Tribunal held that there was a stark difference between the way the claimant was treated and the way her colleagues who were working were treated and the only explanation for the claimant, the most senior person in the organisation at that time, being ‘totally ignored and written out of the organisation’, is the fact that she was on maternity leave.

On 3 December the claimant raised a grievance about the redundancy process and said she felt she was being discriminated against on the basis of sex, maternity and pregnancy. Her grievance was not upheld nor was her appeal. She was dismissed on 30 March 2020 due to redundancy.

The Tribunal saw evidence of emails between Ms Kilcoyne and the grievance manager on 8 April 2020 discussing the appointment of an alternative candidate for the claimant’s role.  They said that this could not however be done straight away as the respondent did not want to ‘open the way to constructive dismissal accusations’. A useful reminder that all an employee now needs to do to potentially see internal emails of this nature is to submit a data subject access request (DSAR) – so always be careful – if you wouldn’t want a Tribunal to read it then you probably shouldn’t be saying it.

The Tribunal ruled that the claimant was ‘treated unfavourably because she was on maternity leave’ and that the redundancy consultation was a ‘sham’. The respondent was ordered to pay the claimant £30,000 in compensation for unfair dismissal, maternity discrimination, sex discrimination, injury to feelings, and breach of contract.

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