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Discrimination at work - redundancy and pregnancy

This advice applies to Scotland

Sometimes if you’ve been made redundant and you think you’ve been treated unfairly it may be unlawful discrimination under the Equality Act 2010.

Read this page to find out about when you may have been discriminated against if you’re made redundant when you’re pregnant or on maternity leave.

What’s redundancy?

Redundancy is a form of dismissal. It's where you’re dismissed for one of the following reasons:

  • your employer’s need for employees to do work of a particular kind has ended or diminished
  • your workplace closes
  • your employer goes out of business.

Redundancy is a potentially fair reason for dismissing you but sometimes it may be unfair dismissal. It can also be unlawful discrimination under the Equality Act.

Can your employer make you redundant when you’re on maternity leave?

Your employer can sometimes make you redundant while you're on maternity leave and it won’t be discrimination or unfair dismissal, but you have greater protections if you're made redundant while on maternity leave.

It will be fair and non-discriminatory to make you redundant when you're on maternity leave if all of the following apply:

  • there's a genuine redundancy situation at work
  • redundancy is not being used as a way of disguising that you're being dismissed because of your pregnancy
  • you're not selected for redundancy because of your pregnancy
  • you're included in all communications or consultation about the redundancy
  • any selection criteria your employer uses don’t directly or indirectly lead to your selection for redundancy because you're on maternity leave; and
  • your employer considers suitable alternative work for you where it’s available in the same way as they would if you were not on maternity leave.

When is it not a genuine redundancy if you’re on maternity leave?

The following situations aren’t genuine redundancies if you’re on maternity leave:

  • your employer permanently gives your duties to someone else during your maternity leave and then doesn’t allow you to come back at the end of your maternity leave
  • your employer appoints a new employee during your maternity leave who takes over your duties and then makes you redundant because they say your job no longer exists.

If you’re made redundant because you’re on maternity leave or because you’re pregnant

If you're made redundant because you’re on maternity leave or because you’re pregnant, the dismissal will be pregnancy and maternity discrimination. Pregnancy and maternity discrimination is unlawful under the Equality Act. It doesn’t matter whether there’s a genuine redundancy situation or not, it will still be unlawful discrimination. It will also be automatically unfair dismissal.

In a genuine redundancy situation, it may also be pregnancy and maternity discrimination if your employer uses discriminatory selection criteria. Here are examples of criteria which are likely to be discriminatory:

  • if you receive a low score because your maternity leave is treated in the same way as other leave, like sick leave
  • if your pregnancy-related sickness absence is taken into account as part of your absence record in the same way as sickness absence that’s not pregnancy-related
  • if other pregnancy-related absence is taken into account as part of your attendance record - for example, your antenatal appointments
  • vague criteria like commitment, loyalty or flexibility are applied in a way that relates to the fact you're on maternity leave or pregnant.

Suitable alternative job if you’re on maternity leave

If you‘re made redundant while you’re on maternity leave, you have the right to be offered a suitable alternative job before it’s offered to any other employee. The terms and conditions of the job mustn’t be substantially less favourable to you. If they are, it won’t be considered a suitable alternative job and your employer won’t have to offer it to you.

If your employer offers you an alternative job they know you don’t want to do or won’t perform well in, this could be pregnancy and maternity discrimination. But the fact that the employer thinks an alternative job is suitable but you disagree doesn’t necessarily mean it’s discrimination.

If there’s a suitable alternative job, you shouldn’t have to apply for it or be interviewed for it. It must be offered to you even if you’re not the best candidate for it or if you would not have been offered it had you had to compete with colleagues who were also being made redundant.

If there’s no suitable alternative job, the employer can make you redundant but must continue to look for a suitable alternative job until your contract comes to an end.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website.

Acas

Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.

To talk to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.

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