Management: Pregnant and redundant
There is a perception among senior management in some City law firms that female lawyers who take time off work to have a family are no longer ambitious or committed to their careers. Some female lawyers in their thirties hold off starting a family, in the hope that they will be promoted to a partnership position first.
June 27, 2007 at 08:09 PM
7 minute read
There is a perception among senior management in some City law firms that female lawyers who take time off work to have a family are no longer ambitious or committed to their careers. Some female lawyers in their thirties hold off starting a family, in the hope that they will be promoted to a partnership position first.
There is a danger that the goalposts for promotion will keep moving, while the woman gets older and her biological clock ticks away. Many women do not obtain the promotion they seek and they often sacrifice the chance of meeting a partner and having a family.
I chose not to do this. I married at 29 when I was five years' qualified and working as an employment lawyer at a City law firm. My husband and I were keen to start a family. In April 2006, when I was nine months pregnant and one week before I was due to commence maternity leave, I was called to a redundancy consultation meeting. I lost my job only seven days before I gave birth.
In April 2007, one year after my dismissal, maternity rights were rightly improved in recognition of the important contribution that working women make to society in having and raising a family. Statutory maternity pay extended from 26 weeks to 39 weeks and women also became entitled to additional maternity leave.
Employers are certainly more aware of employees' family-friendly rights now, but there are doubts that some firms are merely paying lip service to these 'new age' concepts – or are attitudes really likely to change because new legislation has come into force? Only time will tell.
My personal experience and legal knowledge has helped me to advise employers that are contemplating making a pregnant employee or a woman on maternity leave redundant. Pregnant women are protected by statute. Dismissing a pregnant woman for redundancy will be automatically unfair if she is selected on the grounds of pregnancy or childbirth, or because she has taken or seeks to take maternity leave. I give my corporate clients the following tips to help minimise the potential legal exposure to claims for automatic unfair dismissal and sex discrimination:
- Wait until the employee is due to return from maternity leave and then assess whether a genuine redundancy situation exists. It is hard to predict up to a year in advance with any accuracy what your business workflow and personnel requirements will be when the employee is due to return to work from maternity leave. If you pay only statutory maternity pay and you do not have an enhanced maternity policy, it will not cost you any more money to wait until the end of the employee's maternity leave period to see whether or not a genuine redundancy situation exists. In any event you can recoup 92% of statutory maternity pay (or 104% if you qualify as a small employer).
- Whenever the redundancy is implemented, ensure that the redundancy selection pool is appropriate and that fair, objective selection criteria is used to assess the relevant individuals. As Lord Griffiths stated in the House of Lords decision in Brown v Stockton-on-Tees Borough Council [1988]: "It surely cannot have been intended that an employer should be entitled to take advantage of a redundancy situation to weed out his pregnant employees."
- Document decisions made during the redundancy selection process and the reasons for them. This will help you to defend any claims which may be brought against you, as such documents will be disclosable as part of the litigation process and can be relied on as evidence in any proceedings before an employment tribunal.
- You must offer an employee on maternity leave any suitable alternative employment that arises; otherwise her dismissal will be viewed as unfair.
- If you make a pregnant employee redundant, do not tell clients that the employee is on maternity leave. The risk is that they will expect her to return to work within a year and you are merely delaying having to explain your actions until a later date.
- Do not impose a tight deadline on signature of a compromise agreement, when the employee has just given birth. This would put unnecessary pressure on the employee at a time when she is most vulnerable and preoccupied with her newborn baby.
- Handle the matter sensitively and be helpful to the employee. Offer her things which will not cost you much money but will make her life easier. For instance, provide a detailed reference, instead of a standard reference; pay for outplacement counselling; and allow her to retain her laptop. This will help her to attempt to mitigate her loss.
It is possible for an employer to make a pregnant employee redundant without serious exposure to successful sex discrimination and unfair dismissal claims. At the same time, a redundant pregnant employee can leave her employer, believing that she has been treated fairly and that there is a genuine business need for the redundancy. It is difficult to strike this delicate balance, but it is not impossible.
Many new parents who return to work request part-time or flexible working arrangements. The work/life balance is extremely important to 'Generation Y'. We work to live, rather than live to work. The concept of 'a job for life' is alien to us, whereas that was the norm for previous generations. If our employer does not provide us with the flexibility we need to enjoy fulfilling relationships with our partners and children, then we must move on to another organisation which appreciates it.
To be content in your professional career and to be a well-rounded individual you need to also be satisfied in your personal life. This is a monumental shift in attitude, but one which employers need to adapt quickly, if they want to retain and attract talented individuals. This is a particularly pressing issue as the industry will face a huge shortfall in talent over the next few years, due to declining birth rates over the last few decades.
It is not sufficient for organisations to have flexible working policies. There needs to be buy-in from the top. Chief executives and senior management need to lead by example.
A survey published by the Equal Opportunities Commission (EOC) in June suggests that the UK still has a long way to go to catch up with our European counterparts in relation to offering flexible working. Of the 8,000 firms surveyed, 90% in mainland Europe made flexitime available, compared with only 48% in the UK and only one in five UK firms allow their employees to work from home. This will have to change in light of proposed amendments to the law. The Conservative Party wants to extend the right to request flexible working to all those with children under the age of 18. At present, the right only applies to those with able-bodied children under six-years-old.
The EOC wants to go even further than this and extend the right to all employees, not just parents and carers.
I know from personal experience that flexible working can be achieved, provided that both parties are committed to making the arrangement a success.
I work in the office from 9am-5pm, so I can pick my daughter up from nursery and spend quality time with her each evening. I then log on at home once she is asleep and catch up with any urgent work. I also work from home on a Friday, which relieves me from the daily commute and allows me to collect my daughter from nursery.
This arrangement works well for me and my employer and gives me the best of both worlds – a rewarding professional career and a fulfilling relationship with my husband and daughter.
Michelle Chance is a senior associate specialising in employment, partnership and discrimination law at Fox.
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