Chris Hadrill, a specialist employment solicitor at Redmans, answers the question:
“What are my rights if I’m pregnant and have been told that my position may be made redundant?”
If you are pregnant and have been told that your position may be made redundant, then you have a limited amount of protection under UK legislation as follows:
- You have the right not to be subjected to unfavourable treatment because of your pregnancy (section 18 Equality Act 2010)
- If your dismissal is for a reason connected to your pregnancy then your dismissal may be automatically unfair (section 99 Employment Rights Act 1996)
The reason for your treatment is the crucial factor
If you’re pregnant and have been told that you may be made redundant then whether your dismissal is discriminatory or not will depend upon the “reason why” you’ve been treated in the way that you have (as per Nagarajan v London Regional Transport  ICR 877) – the crucial factor is why you’ve been treated the way you have and whether there are sufficient facts from which a Tribunal could infer that the reason that you’ve been treated the way you have because of your pregnancy (or, at the very least, your pregnancy was a significant influence affecting your treatment). If there are sufficient facts from which a Tribunal could conclude that your pregnancy was the reason (or a significant influence on) why you have been selected from redundancy then the burden passes to your (previous) employer to show that there was a reasonable alternative explanation for your selection for redundancy (e.g. that here was a genuine redundancy situation). As you may have gathered context is everything in a case like this: if you show sufficient facts from which the Tribunal could infer discrimination took place then you have (at the least) a good case; if there is no evidence corroborating your assertion that discrimination took place then you may have difficult persuading a Tribunal that the reason that the reason you have been made redundant is your pregnancy.
In addition to the above, a critical factor in whether you would be a successful with a claim for pregnancy discrimination if you’re dismissed for the reason of redundancy is whether you have been informed of your pregnancy – if you don’t inform your employer of your pregnancy before you are made redundant then you will generally not succeed in a claim for pregnancy discrimination (see the reason Employment Appeal Tribunal case of Really Easy Car Credit Limited v Thompson for an exposition of UK law in this area (our analysis of this case, BAILII). This issue has also been clarified by the recent European Court of Justice decision in Guisado v Bankia SA (our analysis of this case, BAILII)
Difference with maternity leave
If you’re on maternity leave then you are entitled to enhanced protection from being made redundant under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312) (see our article on the rights of employees on maternity leave in redundancy situations).
Our solicitors’ views
Chris Hadrill, a specialist employment solicitor at Redmans, commented: “If you’re pregnant and your employer is seeking to make you redundant then whether your redundancy is discriminatory depends upon the context of the situation – if you can show sufficient facts from which the Tribunal could conclude that your dismissal was discriminatory then you could have a good case. If you’re in doubt then contact a specialist employment solicitor to discuss your options.”