Firms making redundancies could leave themselves open to sex discrimination claims if they fail to consult properly with employees who are on maternity leave and are affected by restructuring.
The right to statutory maternity pay should be guaranteed for employees on maternity leave, whether they are made redundant or not. During both ordinary and additional maternity leave, the employee should also receive the benefits of any redundancy pay (both statutory and enhanced).
Employees with a statutory notice period receive a full week’s pay for each week of notice served, but those with longer notice periods are, typically, entitled only to the same rate of pay received while on maternity leave.
But complications can arise if an employee on maternity leave is not involved in consultation before being made redundant. Chris Walter, head of the employment team at Paul Hastings, said: “Employers tend not to think about staff on maternity leave enough, particularly when there are redundancies going on, until they get notice from the employee that she is coming back.
There is often a scramble because the job is gone and the company has restructured. If an employee on maternity leave is able to show that she has been treated less favourably as a result of her maternity leave, she will have an automatic sex discrimination claim.”
Keeping in Touch Days, introduced under the Work and Families Act 2006, can be used to counteract this problem. Staff on maternity leave can agree to work for a maximum of 10 days during their maternity or adoption leave. This can include training, or other activities that help them keep in touch with the workplace.