maternity redundancy case law

OH&W subscriptions Talent Management This gives the woman priority over other employees who are at risk of redundancy, … Business Department research has suggested 54,000 women may lose their jobs due to pregnancy or maternity … Handling the redundancy process if you have an employee who’s pregnant (or on maternity leave) is a difficult undertaking.. You must make sure you can justify your reasons for taking this action. HR Business Partner the terms and conditions of her new job, including the capacity and place in which she is to be employed, must not be “substantially less favourable”. People Analytics This is because you may be about to give birth or may have been out of the workplace for some time and you … The latest employment law news & updates from Kalra Legal Group . Employee Benefits Connect Eight months ago, I was given a pay rise, in recognition of my hard work and for consistently exceeding my monthly targets. United Kingdom; Employment law - HR E-Brief; 20-02-2013. Her claim for unfavourable treatment succeeded on the basis of “failure adequately to communicate with [the employee] with regard to the redundancy exercise”. You still build up your holiday entitlement as normal during maternity leave. HR Shared Services Learning & Development Redundancy while on maternity leave A Which? © 2011 - 2020 DVV Media International Limited. Regulation 10 states that this right to a vacancy depends on two conditions: In this case, Endsleigh closed down several branches, including Mrs Simpson’s place of work in London, while she was on maternity leave. Occupational Health Section 13 Equality Act 2010– to make a claim to the Employment Tribunal for direct pregnancy and ma… Jackson was on maternity leave when, along with a number of colleagues, she was put at risk of redundancy. The recent case of Simpson v Endsleigh Insurance Services Ltd emphasises that, not only is this a misconception, but the right of a woman on maternity leave to suitable alternative vacancies is not automatic. Search . Later that day she was told that her position was at risk of redundancy, and was … If you are made redundant during your maternity leave, regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (see extract below) states that a woman on maternity leave must be offered a suitable alternative vacancy, if one exists, as soon as her post is at risk of redundancy. Redundancy. Question I have been working for my employer for six years as a marketing assistant. This guide will explain the key issues for employers dealing with redundancy during maternity leave, to help ensure fair and lawful handling of the process and to reduce the risk of tribunal claims. However, the protection will be triggered once the employee on maternity leave is provisionally selected for redundancy following a selection process. An employee on Maternity Leave or Additional Maternity Leave cannot be notified that they are being made redundant. Recruitment & Resourcing Where a redundancy will take effect before a woman goes on maternity leave is she entitled to preferential treatment with regard to being offered suitable alternative employment? It also appeared to the EAT that the situation might simply have arisen due to an administrative error. When a redundancy situation arises whilst an employee is on maternity leave, the employee has a right to be offered a suitable alternative vacancy (Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regulations). Does an employee made redundant while on maternity leave have any special rights? In its assessment of the employment tribunal’s decision, the EAT noted that the employment tribunal had made no finding as to why the email had been sent to the employee’s work email address or why she could not access the email in question. Terms and conditions, • Employee Benefits A case heard by the Employment Appeal Tribunal provides a useful reminder of the risks of discrimination claims if an employer neglects or ignores the position of staff on maternity leave. To make things clearer, the law says: If you’re on maternity leave, you have the right to return to the same job you had before you left. Employee Relations Guest. Employment Law OH&W subscription terms. The EAT also confirmed that the question of the job’s suitability was one for the employer and there was no requirement that the employee be involved in this process. Freear v Vossloh Cogifer UK Ltd 1800747/2016. Home / Resources / End of Employment Contract / Case Law Update: Maternity Leave & Constructive Dismissal. However, as these cases demonstrate and regardless of the eventual result in Jackson, the employer’s obligations are ongoing. In some cases, … Change Management The employment tribunal found that the employee had been subjected to unfavourable treatment because she was exercising her right to maternity leave and that her treatment therefore constituted discrimination contrary to section 18(4) of the Equality Act 2010. Calendar. The recent case of SW Yorkshire Partnership NHS Foundation Trust v Jackson is a useful reminder of the risks of discrimination claims to which employers can expose themselves if they neglect or ignore the position of staff who are on maternity leave. Summary of claim: the Claimant informed her employer that she was pregnant on 9 December 2015. OH&W subscription terms. © 2011 - 2020 DVV Media International Limited. The employment tribunal held that Mrs Simpson had not been unfairly dismissed. Privacy policy How to stay in touch with employees on maternity leave: Redundancy, SW Yorkshire Partnership NHS Foundation Trust v Jackson. 27 Nov 2020. Cookies policy HR (General) Advertising specifications UK HR ebrief - Redundancy case law: recent developments. The case concerned Regulation 10 of the Maternity and Parental Leave Regulations 1999, which states that, if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave, the employee is entitled to be offered (not just invited to apply for) a suitable available vacancy with her employer (or an associated employer). Health & Safety The EAT has held that an employee refusing to return to work following the end of her maternity leave amounted to her acceptance of a repudiatory breach. CITO Energy Law Just over one month into the twin crises of Covid-19 and Low Oil Prices, … Ahead of an employee going on maternity leave, employers may wish to discuss with the employee what degree of ongoing contact the employee wants in terms of continuing to receive details of social events, company newsletters and the like. Personnel Today has launched a new email newsletter for 2020, focusing on all aspects of diversity and inclusion. How to stay in touch with employees on maternity leave: Redundancy or reorganisation during maternity leave. There may be alternative jobs that can be offered to any employees who are affected by the reorganisation or redundancy process. Personnel Today has launched a new email newsletter for 2020, focusing on all aspects of diversity and inclusion. The recent case of SW Yorkshire Partnership NHS Foundation Trust v Jackson is a reminder to employers of the potential dangers of treating those employees on maternity leave unfavourably during the course of a redundancy consultation exercise. If the employee is off work because of a pregnancy-related illness within 4 weeks of the date the baby is due, maternity leave begins automatically. Carley Kerrs-Walton – Employment "Carley was superb at taking my brief, understood everything I was asking and gave me a very in-depth assessment of where I stood legally. What counts as reasonable contact will of course depend on the particular circumstances. Maternity and redundancy. Features list 2020 Apprenticeships A redundancy has not occurred if the employer has ended the employment within one month of the end of the apprenticeship. Charles Wynn-Evans outlines how employers can nevertheless face a tribunal claim. We are a small company and it is only me, another marketing assistant and the marketing manager in the team. Email Newsletters Change Management Compensation & Benefits Contact us An employee who is made redundant while on maternity leave is entitled to be offered (not just invited to apply for) a suitable available vacancy with her employer (or an associated employer). An employee was on maternity leave when she was put at risk of redundancy. Advertising specifications ... You will receive regular updates on Irish employment law including case law reviews, legislative changes, topical updates as well as answers to your burning questions through our Q&A feature. If a pregnant employee qualifies for statutory maternity pay and is made redundant before going on maternity leave but after the beginning of the 15th week before the baby is due, you will need to pay her statutory maternity pay (SMP) as well as any redundancy payment. Redundancy and Maternity . Employers should ensure that they have evidence of why they consider a new role is not “suitable and appropriate” and document their reasoning in case their decision is challenged. When the economy is struggling, redundancies can and will occur. What counts as reasonable contact will of course depend on the particular circumstances. the work to be done must be both suitable for the woman and appropriate for her to do in the circumstances; and. There have been two recent cases which are of interest to employers needing to embark on redundancy exercises. Employment law - HR E-Brief 06-04-2011 The Employment Appeal Tribunal (EAT) has ruled that it is unlawful sex discrimination to treat a woman on maternity leave more favourably than other employees, unless the treatment goes no further than is reasonably necessary to compensate her for a disadvantage consequent on her absence on maternity leave. Recruitment & Resourcing The answer is no – not at the moment. As a consequence, she did not see the email until she learned subsequently that she had missed something and contacted the employer, whereupon the email was sent to her personal email address. Employers must keep the business active until the maternity leave is finished and then notify the employee. OH&W subscriptions It may seem easier to let someone go if they are already absent from work. Employee Benefits Awards Occupational Health Endsleigh accepted that the new position was suitable for Mrs Simpson, but argued that it was less favourable to her in relation to its terms and conditions – eg, she would have to relocate and do a seven day shift. The relevant legislation – regulation 12A(4) of the Maternity and Parental Leave etc Regulations 1999 – does allow for employers to be entitled to have “reasonable contact” with their employees whilst on maternity leave. Employment Law Diversity & Inclusion Wellbeing Therefore, it argued that there was no obligation to offer her the post. 5 minutes reading time (960 words) Protection from redundancy during maternity leave. HR Systems In this post we look at five examples of successful Employment Tribunal claims for pregnancy and maternity discrimination that were made in the Employment Tribunal in 2017. HR (General) Training The EAT concluded that the employment tribunal’s decision could not stand, allowed the appeal and remitted the case back to the employment tribunal to consider the claim again, applying the correct analysis with additional evidence if necessary. If this is the case, and an employee who has been selected for redundancy is on maternity leave, they have the right to be offered any suitable alternative job that is available, before any other employee. Legal Service member called our specialist employment lawyers about her selection for redundancy whilst she was on maternity leave. Payroll influenced its actions – or where the employer had applied a discriminatory approach or criterion to the employee. Learning & Development The EAT held that this was an incorrect approach and that the employment tribunal should have considered instead the “reason why” the unfavourable treatment had occurred in determining whether the employer’s actions were unlawfully discriminatory. Employers often believe that it is unlawful to make a woman redundant during maternity leave. Employers who wish to maintain discretionary redundancy schemes should make this clear in any policy and redundancy payments should be made on a variety of terms on a case-by-case basis. The case concerned Regulation 10 of the Maternity and Parental Leave Regulations 1999, which states that, if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave, the employee is entitled to be offered (not just invited to apply for) a suitable available vacancy with her employer (or an associated employer). This provision is the basis upon which it is legitimate for an employer to contact an employee during maternity leave to address issues such as arrangements for the employee’s return to work at the end of the maternity leave period. Organisational Development Categories. Terms and conditions, • Employee Benefits (It is a rare example of lawful positive discrimination.) Talent Management Redundancy and maternity leave – are employees on maternity leave "untouchable"? HR Director The relevant legislation – regulation 12A(4) of the Maternity and Parental Leave etc Regulations 1999 – does allow for employers to be entitled to have “reasonable contact” with their employees whilst on maternity leave. If you are being made redundant because you are on a maternity leave, the dismissal will be a maternity discrimination, which is unlawful under the law of Equality. During the redundancy consultation process she was invited to apply for a position in Cheltenham. This includes absent employees, such as those on maternity leave. The EAT accepted that to send an important and urgent work message to an employee in an email which the employee cannot access for some reason amounted to unfavourable treatment “one way or another”. Payroll It also proves that, sometimes, the correct reading of legislation is reassuringly obvious. Against the backdrop of continuing economic uncertainty, there has been a steady flow of redundancy decisions from the Employment Appeal Tribunal (EAT) over the last few months. This right is only available to women on maternity leave who are put at risk of redundancy. This year is set … Download our guide to redundancy rights when pregnant or on maternity leave (PDF, 299KB, 13 pages). By Ben Power, 24 July 2020. Employee Benefits Connect HR Business Partner Email Newsletters Potential claims include the following: 1. pay them maternity pay as well. Also, this was not a case where the fact that the employee was on maternity leave had “operated on the employer’s mind” – i.e. Wellbeing An earlier example of the possibility of a claim of unfavourable and discriminatory treatment as a result of an employer’s inadequate communication with an employee on maternity leave is Visa International Service Association plc v Paul (2004). More from Linder Myers. This week, Katie looks at redundancy and maternity leave. Rather optimistically, Mrs Simpson argued that, if there was a suitable post, this should have been offered to her even if the terms and conditions of the contract were less favourable. Employment law updates Maternity leave and redundancy. How an Employment Law Solicitor at Martin Searle Solicitors obtained compensation for a woman unfairly selected for redundancy due to maternity discrimination. The Personnel Today Awards The employment tribunal had found that the unfavourable treatment about which the employee brought her claim (not receiving the email in question) would not have happened had she not been on maternity leave – to adopt the legal jargon it would not have arisen “but for” the fact that the claimant employee was on maternity leave. In that case, an employee succeeded in a claim of discrimination, and indeed for breach of the implied duty to maintain trust and confidence, where her employer had failed, during her maternity leave, to inform her of a vacancy for which she would have wished to apply had she been aware of it. Redundancies can, however, become further complicated in circumstances where the law affords the worker additional protections, such as if the employee is pregnant or on maternity leave. ). Employee Benefits Live, • Occupational Health & Wellbeing If a pregnant employee is made redundant before commencing maternity leave can her employer pay her statutory maternity pay in one lump sum? Cookies policy Genuine redundancy on maternity leave: how to tell if it’s discrimination or valid. Her employer had gone through a reorganisation and had announced a number of the new alternative roles within business. Implied terms can arise from custom and practice and if employers adopt regular patterns of payments this may give rise to a contractual term. Knowing – and proving - whether your redundancy is valid or not can be tricky. Redundancy during pregnancy If you have been made redundant because you are pregnant, you may be a victim of pregnancy discrimination which is an unlawful act under the Equality law. Case Law Update: Maternity Leave & Constructive Dismissal. Workforce Planning, • About Personnel Today However, at the Employment Appeal Tribunal the employer succeeded on the basis that the employment tribunal had applied the wrong approach to assessing whether the employer’s actions were discriminatory. Training RSS feeds HR Systems Health & Safety It’s against discrimination law for your employer to make you redundant just because you’re pregnant or on maternity leave. The tribunal decided that the reason the employee did not receive the email detailing the alternative opportunities available was that she was on maternity leave. An alternative vacancy must be both suitable and appropriate for the woman to do in the circumstances, and the terms and conditions must not be “substantially less favourable”. The Personnel Today Awards Employee Benefits Awards Redundancy may be genuine, but if your employer uses a discriminatory criterion for selection, it will still be a pregnancy discrimination. Archives. People Analytics While this decision provides welcome clarification for employers, they should still consider alternative vacancies in these circumstances very carefully – suitability and favourableness will not always be clear cut. Failure to employ with this regulation will give rise to an automatically unfair dismissal. This gives the woman priority over other employees who are at risk of redundancy, even if they are better qualified for the job. In the case of redundancies, minimum notice periods are specified by law. Workforce Planning, • About Personnel Today The statutory redundancy notice periods are: If you have been employed for 12 years or more, then you must be given 3 months’ notice. You should also not be selected for redundancy based on factors related to your pregnancy and/or leave. Employee Benefits Live, • Occupational Health & Wellbeing HR Consultant RSS feeds The employer notified the employee of various opportunities for redeployment but these were sent to her work email address. On the particular circumstances if the employer has ended the employment tribunal held that Mrs Simpson not! Appropriate for her to do in the case of redundancies, minimum notice are... Is unless you and the employee on maternity leave employee on maternity leave or length of leave not! For consistently exceeding my monthly targets on all aspects of diversity and inclusion arise from custom and practice if! 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