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Earlier this month a former director of Lehman Brothers, the failed investment bank, told an employment tribunal in Stratford that she was chosen for redundancy while on maternity leave because administrators only wanted staff ‘who were there’.
Elizabeth Spencer started her maternity leave in November 2008, two weeks after the bank filed for bankruptcy.
A month later, she was selected for redundancy, while many colleagues moved to Nomura bank (which had bought part of the business) and others remained at work to manage the wind-down. Ms Spencer was told that the business did not need staff who were not there.
Sadly Ms Spencer’s experience is not uncommon.
Many employers who are facing challenging times and considering redundancies or other changes to their workforce will see those on maternity leave as an obvious first port of call.
However, selecting an employee on maternity leave for redundancy simply because she is not there, or because the business is getting by without her, will be unlawful discrimination, leaving the employer facing a possible employment tribunal claim.
In times of change, maternity absence should not be the reason for an employer choosing who stays and who goes.
There are practical problems of course with people being away from work. In some cases employers believe they are acting in their employee’s best interests when they decide not to bother her on her maternity leave to tell her about the changes which are planned.
But the law permits reasonable contact with women on maternity leave, because being kept out of the loop puts them at a real disadvantage. Left out of discussions and unaware of impending redundancies or restructuring, their opportunity to contribute to consultation about the changes is lost. Perhaps even more importantly, their chance to identify any suitable alternative roles within the business is lost too, as any vacancies will have been filled by the time they return.
And in redundancy situations, women on maternity leave benefit from a little known protection which enables them to jump the queue where suitable alternative roles are available.
This is the law’s response to the uneven playing field faced by women on maternity leave who are asked to go through interviews to win a different role when their own role is redundant. Being out of the workplace makes it almost impossible for them to perform at their best against colleagues who are completely up to speed. To level out the playing field, the law requires employers to allocate alternative roles to those on maternity leave first.
There are ways that women on maternity leave can encourage their employers to get it right.
First, it can help to talk to your employer before your maternity leave even starts about the kind of contact you would like, for example whether by email or telephone, who you would like to contact you and how often. You could also tell your employer that you want to be kept up to date about any major changes at work. And make sure you know what your redundancy rights are before you go, just in case.
If changes are planned, keeping in touch or ‘KIT’ days can be useful. A woman on maternity leave can attend work for up to ten ‘KIT’ days, without losing any of her maternity benefits. A KIT day could be used to attend a consultation meeting for example.
Where redundancies are made, make sure you have not been targeted by asking your employer to tell you who is at risk, what criteria have been used to select for redundancy from those at risk, and how you scored compared to others. You are entitled to be given this information.
If there are any other vacancies for a role which you could do, you are entitled to be offered a suitable role before anyone else. This is a strong protection, make sure your employer knows about it, and ensure that out of sight does not mean out of mind.
Lastly, think creatively.
In difficult times, employers will often be more open to requests for reduced hours or different ways of working so, if you would prefer not to return to full=time work after your maternity leave, you might succeed in turning a negative situation to a positive one for all involved.
Russell Jones & Walker provides a free and confidential online service, EqualityXpress, for people who are concerned they may have been the victim of discrimination in the workplace. http://www.rjw.co.uk/equalityxpress/
Emma Hawksworth is a partner in Russell Jones & Walker’s employment team. A working mum, she advises employees on all aspects of employment law with an emphasis on sex discrimination, maternity and flexible working.
Tags: back to work, discrimination, employment law, Equality, flexible working, maternity, Maternity and the Law, redundancy, work-life balance, working mums
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