Unfair Treatment, Discrimination or Dismissal Information

Redundancy – can it be done?

A common myth is that employees who are on maternity leave or who are pregnant cannot be made redundant. While there are additional protections, especially for those placed at risk of redundancy while on maternity leave, it is possible for the employer to lawfully make them redundant; but the employer needs to make sure that the person is not selected for redundancy because they are on maternity leave or are pregnant and about to go on leave.

For example, if an employer has to make a member of staff redundant from amongst a group of its staff and one of that group is pregnant, if the employer selects that person as the one to be made redundant because she is pregnant, the termination of her employment will be automatically unfair because she has been selected for a reason which is discriminatory, namely that she is pregnant. The law gives the employee the right to claim that she has been discriminated against and automatically unfairly dismissed because the reason she was selected for redundancy was because she was pregnant. While the employer may think, not without some justification especially in small establishments, that this is unfair because it will have to source maternity cover to replace her while she is away, which may prove difficult, or the other staff will be additionally burdened by her absence, that is the legal position.

In contrast, in the same scenario where an employer has to make a person redundant from a particular group, if the employer uses an objective set of criteria to select that one person and none of those criteria are to do with an individual being pregnant or being about to take time off for maternity leave (or paternity/parental/adoption leave) but she happens to be selected because she is the lowest performer or least able member of the group at risk, and the employer can demonstrate this, the individual can lawfully be selected for redundancy. The reason is nothing to do with her being pregnant and solely because she is the lowest performer/achiever of the group at risk. The onus will be on the employer to show that she was the lowest scorer / achiever and that was why she was selected.

An employee in that situation might challenge the decision by saying that the reason she is the lowest performer of the group is because she has struggled through her pregnancy with, perhaps, pregnancy related illness. If the employer cannot rebut such a challenge, there may be a risk that the employee could still show she has been selected for a pregnancy-related reason; but it is less clear-cut, and the employee would have to prove the link between her pregnancy and her underperformance.

If an employer has to make a number of people redundant and one or more are pregnant, provided the same selection criteria are applied to all of them, and those pregnant are treated no differently, the decision to make a pregnant woman redundant will not be discriminatory.

Enhanced protection on maternity leave

There is additional protection for women who are already on maternity leave if they are placed at risk of redundancy whilst absent. The employer must offer them, as a priority over any others at risk, any suitable and appropriate employment which is available as an alternative to their redundant role. Even if there are others at risk who are not absent on any form of statutory leave and could take an alternative available role immediately, the employer must give it to the pregnant employee on maternity leave and hold it open for her until ae returns. Otherwise, the employee will have a claim that she has been discriminated against by reason of being on maternity leave and not being given that role. It makes no difference if there are other candidates who would be better at doing the job; if it is suitable and appropriate for the employee to return to, she must be given that job.

The employer may say that this is unfair, especially if the employee on maternity leave is an underachiever whereas others who are also at risk are not. Again, this is an example of where the law protects the employee because she has an automatic right to be given a suitable alternative role over someone who is not pregnant, even if she will not be able to step into that job until she comes back from her maternity leave.

Detrimental treatment

Employees who are treated differently compared to other employees because they are on, are about to take, or have returned from, any form of the family friendly periods of leave may have claims that they have been treated unfairly and so discriminated against by the employer because they are taking that period of leave.

A not uncommon example of detrimental treatment is where employees are on a period statutory leave and miss out on a bonus that, had they been present, they would have received. It may well be that the employer has no idea that, even though they are absent, they are still entitled to it. They may well be. If such a bonus is given to all staff regardless, such as a Christmas bonus, or pool money, employees away on statutory leave are still entitled to receive their share. To do otherwise is treating them less fairly because they are exercising their legal right to take the leave and the Equality Act provides an avenue for redress for such treatment should they need it.

It is rare to find blatantly obvious examples of discrimination. They are more likely to be found in throwaway comments or off-the-cuff remarks (which come down to a “he said/she said” scenario), or an employee misinterpreting an employer’s approach or instructions and thinking that the employer has done or not done something, not because of a reason connected to the running of the yard or the horses, but because the person has been on, or is about to take, a period of family friendly leave.

Men

Although because it is women who give birth, the emphasis is on women when it comes to protection from detriment, the protection does also apply equally to men where relevant. For example, if a man asks to take the 2 weeks paternity leave to which eligible male employees are entitled, he should not be treated unfavourably or detrimentally because of this on his return to work. Men should not feel that their roles may be in jeopardy if they ask to take the two weeks to which they are entitled and if they find that this happens, under the Equality Act, there is protection from the law should they need it.

While entering into the realms of legal action might not be a step employees wish to take, the prospect of it does serve as a reminder to an employer inclined to ignore the protection afforded to employees that they do so at their peril and encourage practical discussion regarding how paternity (or indeed any) leave can work to come to a mutually acceptable solution which allows the employee to exercise their statutory rights.

Rather than the negative risk of legal action, employers should look at the upsides of fathers taking paternity leave and the benefit to the business in encouraging an overall flexible approach to the mix of a home and work lifestyle. If employers are open to, and encourage, their staff to have as much of a home life as possible and enable them to interlink this with their career in racing, this would be a huge step towards encouraging more people to join, and remain in, racing at a time when many people are leaving the industry (or decide against even joining it) because they want to have a family life and feel that the two are incompatible. Furthermore, the motivational boost such an approach would provide to staff should be rewarded by loyalty and commitment to their role and the part they play in the business.

For more information on best practice regarding Fathers and Paternity, click here.

Flexible working

It is very common for employees returning from a period of maternity or shared parental leave, to request to work flexibly or part-time. However, it is not just a case of the employee asking and the employer having to grant it. The employee has to show who their proposed altered hours or days of working can be dealt with by the employer so that the running of the yard or business is not adversely affected or, if it is, how that adverse effect can be ameliorated. The employer is obliged to consider the request but does not have to grant it.

Rather than the downside which employers often look at when considering flexible working request, there are in fact a number of considerable benefits of people working flexibly. For one thing, if they have childcare responsibilities, it will enable them to realistically combine this with a career in racing, the knock-on effect of which will almost certainly be increased commitment and loyalty. They are also more likely to stay with an employer who embraces the concept of flexible working, which adds to a stable workforce.

Only employees who are eligible to apply flexible working may make requests.

There are certain permitted reasons for refusal whereby the employer can, lawfully, refuse the request.

For more information on best practice around Flexible Working, click here. You may also find this Flexible Working information useful too.

However, employers need to be aware that a refusal of a flexible working request, while it may fall within one of the “permitted reasons for refusal”, may be potentially discriminatory. The best way to explain this is by way of an example: –

• An employee returning from maternity leave will have childcare responsibilities; she may want to change her hours to work shorter hours each day so that she can drop off and collect her child from childcare.
• The employer refuses on the basis that it is a requirement for all employees to work the stated full-time hours and the business need for this is the running of the yard or business which will be adversely affected if she only works shorter hours because there is not sufficient cover during the time she is not there.
• This requirement is applied equally to men and women so, on the face of it, no discrimination. However, it is potentially discriminatory against women because more women than men have childcare responsibilities and so less women than men will be able to comply with the stipulated full-time hours.

This is what is known as indirect sex discrimination, because the policy, criterion or practice of the full-time hours, applied equally to all staff, adversely affects more women than men. There is therefore a risk to the employer of an employment tribunal claim for indirect sex discrimination. Without getting too technical, the provision, criterion or practice may be justified by the employer if it can show that there is a necessary aim to be achieved in all staff working the full-time hours and an appropriate means of achieving this is requiring the employee concerned to also work these hours.

In a yard or stud farm, the necessary aim would probably be the need for cover to manage the horses, especially on racing days or in the stud season, and if there is a limited number of alternative staff cover if someone works different hours. This is more likely to be relevant in a smaller organisation where there are likely to be less staff to cover absences or different hours.

One of the few positives of the pandemic has been the emergence of office-based employees being able to work at home and therefore work flexibly. Employers in office-based professions have recognised this, and that it increases productivity and commitment, to allow employees to work flexibly from home when needed and have embraced what is now known as a hybrid working policy. This combines home and office work following the lifting of restrictions. Obviously, this is far more difficult when it comes to looking after racehorses and breeding stock, but the concept of flexible working as an approach in terms of varying start and finish times, and even days, is one which should not be lightly dismissed because the benefit to the workforce has a knock-on benefit to the business – a happy workforce is a happy and productive business.

For more information on best practice around Flexible Working, click here.

Website links to useful information

ACAS – Free advice for employers and employees https://www.acas.org.uk/

• Free advice for employers and employees can be found: –
  • https://www.acas.org.uk/making-a-flexible-working-request