How can I avoid making an unfair dismissal when re-structuring?
When undergoing a downsizing exercise at your organisation and team members are about to go on maternity leave, it is important to handle the situation carefully to avoid sex discrimination and unfair dismissal issues.
If the reason for downsizing includes things such as cost-cutting, you may wish to consider alternatives to redundancy. For example, try reducing the hours of members on your team, considering a job share arrangement or salary freeze/benefit review are all possible, if not palatable alternatives. You may want to consider these as part of your consultation exercise.
It is ideal to be cautious about a team member who is pregnant as there are special dispensations for women whose jobs are made redundant when on maternity leave. Whilst the team member may not yet haveembarked on her period of maternity leave, being cautious about the situation is always a wise choice.
Fair selection for redundancy is likely to be your main concern. Obviously you can't use pregnancy as a reason for redundancy as that would be direct sex discrimination, however you should be wary when applying selection criteria such as absence – be careful to ensure that any period of absence related to pregnancy (e.g. illnesses or time off for pregnancy related appointments) to be discounted to avoid any sexual discrimination or unfair dismissal claims.
There is no need to make special allowances in terms of the consultation process as long as you follow statutory guidelines for all members of the team. It is good practise to hold consultation meetings at reasonable times (as you would with non-pregnant employees), particularly if any member of your team works flexible hours.
One particular note to be aware of – there are special provisions made to people on maternity leave if their role is selected for redundancy. If there are to be redundancies then you will need to offer a member of staff on Maternity leave any suitable alternative employment i.e. any role within your company that she is skilled for even if there is someone else within the company that would be better skilled for the job.
Maternity issues aside, remember to carefully plan the process you are going to follow. Include a thorough consultation process allowing staff to suggest alternatives and ask questions; fair selection criteria to avoid any discrimination claims; consider possible scope for re-deployment within the business and help finding other work including time for interviews; and finally don't forget to follow any appeals procedure.
For further information check the ACAS redundancy handling information and the CIPD website for up to date information.