Unfortunately, our company is planning to make an employee from our sales team redundant. The sales team is headed by a manager who works with one male and one female assistant but we now only have enough work for one assistant.
The difficulty is that the female assistant is currently on maternity leave. I think there are special rules protecting employees on maternity leave: should we just select the male assistant and not even put the female employee at risk of redundancy? Or should we put both employees in a redundancy pool and, if so, how would we assess the performance of the female employee when she has not been in the office for several months? Please help!
Dear Ms Confusion
You are right in thinking that there are special rules protecting employees on maternity leave from redundancy. However, this does not mean that you should automatically select the male assistant and not even consider making the female assistant redundant, as that would expose the company to a possible sex discrimination claim by the male assistant!
The law protects both men and women against less favourable treatment on the grounds of sex. However, there is an exception to this rule if a woman is given special treatment in connection with pregnancy or childbirth.
A recent case involved a similar facts to the situation you are facing. Briefly, the facts of Eversheds Legal Services Ltd v De Belin, were:
A male and female employee were scored against various performance criteria, including one criterion which measured the time between work being done and payment for that work. The measurement date was a date on which the female employee was absent from work on maternity leave and was therefore given the maximum score; her employer said it could not score her any other way. As a result of the female employee getting the maximum score the male employee scored very slightly lower overall and was made redundant.
The male employee argued that the scoring was unfair and constituted sex discrimination and at an grievance meeting he offered alternative approaches to scoring, which he argued would be less unfair to him, such as: (i) giving both employees a notional score or (ii) scoring the female at a convenient date before she started her maternity leave.
The male employee brought a claim for direct sex discrimination but his employer argued that it had no choice but to give the female employee the maximum score, since there was a possibility that, if she had remained at work, she would have scored the maximum.
The tribunal disagreed and concluded, on appeal, that the employer was not obliged to give the woman “an unfairly inflated score”- the obligation could not extend to favouring pregnant employees or those on maternity leave beyond what was reasonably necessary to compensate them for their condition or absence from work. It concluded that the employer's approach to scoring the female employee was not proportionate and amounted to discrimination of her male colleague based on sex.
What to do
- Put both your employees into a redundancy pool.
- Assess both against the same criteria. Choose selection criteria which are objective and which are not influenced by the pregnancy or maternity leave or if they have the potential to be, ensure management discount the effect when scoring. For example, if one criteria is absence, make sure that days off through pregnancy related illness or to attend ante-natal appointments are not counted.
- Don’t measure criteria by reference to a time when the female employee is on maternity leave, consider looking at the performance of both candidates when they were last both at work.
- If you are unsure which performance criteria to use or how you should mark against time specific criteria, consult your employment lawyer.