Maternity Leave and Employment Rights Act

Jane’s case is a fairly easy when will touch the Employment Rights Act 1996 which will protect her against unfair dismissal, under sex discrimination legislation, Jane is protected from being unfairly treated on the basis of her pregnancy (for example, if her manager makes her conditions of work less favourable than the conditions of her colleagues) or being dismissed on the grounds of her pregnancy or maternity.

Jane is also entitled to get maternity pay as she has been employed for over 26 weeks for the same company.

Other entitlement that comes with maternity is called SMP, as her average weekly earnings goes over the lower limit for National Insurance Contributions which is £97.00 as per nowadays.

Higher rate for the first six weeks: 90% of her salary

Lower rate for the rest of the leave: £ 124.88 per week

When it comes to Ordinary Maternity Leave she has to give her Manager 21 days notice when she wants it to starts then the manager will provide her with a letter with the date that she suppose to comeback. The OML lasts for 26 weeks and all terms and conditions of employment continues except the pay as seen above.

As per the new amendments on the Law the OML can be extended but then starts to be called Additional Maternity Leave.

As mentioned per Jane, she wants to take an additional 13 weeks AML, she has only to give a written notice to her employer 28 days before her OML expires, her employer is forced by law to accept that.

The first 13 weeks of an AML are paid and if Jane still feeling overwhelmed she can take a further 13 weeks but those will be unpaid.

The main difference when comes to OML and AML is that:

When coming back from AML Jane should if reasonable practicable get the same position that she left or the employer must find her a suitable job on a no less favourable terms and conditions.

When comes to her Manager been frightening to dismiss her, she shouldn’t worry about it, as any kind of dismissal on the grounds of Maternity or Pregnancy goes under an Automatically Unfair Dismissal as per Employment Rights Act 1996 and other Statures. She has only to be careful on given her manager a 21 day notice for when she wants to start her Maternity Leave.

To better understand the selection process firstly we have to know the basics about redundancy.

Redundancy is a type of dismissal based on:

When the position which those employees are executing is intended to stop, cease or diminish.

Business or workplace where those employees are employed is intended to stop, cease or diminish.

A proper process has to be followed and a few criteria’s have to be used to help on the selection process, such as:

Been objective.

Non-Discriminatory.

Consistent.

A pool of candidates has to be drawn up with those which are doing a particular job or working in a particular site.

If those criteria’s are not used is almost certain that some employees are going to claim unfair dismissal.

To avoid The Redundancy process the companies could approach different methods of reducing costs, for instance:

Looking for voluntary redundancies or early retirement, those are better known as non-compulsory redundancy.

Look for employees willing to work flexible hours or part-time.

Reduce or terminate overtime.

Using own employees to fulfil other job vacancies inside the company.

Retrain staff and offer different positions in different departments.

If those alternatives are not yet enough to reduce the costs and avoid redundancy then the company is subjected to redundancy and here are the most popular criteria’s:

Skills, qualification and aptitude using a base of points: those are the mostly used as they will keep the balance on the workforce.

Work performance: evidence has to be shown during process usually the company will take in consideration the appraisal.

Adaptability: choose individuals which are able to accept different types of work as needs change.

Attendance / Disciplinary records: This criterion has to be applied with some care as there cannot be included maternity, paternity or adoption leave and the approach has to be taken more personally as the employer has to understand the nature of the absence.

Last-in-First-out: where the last employee to sign the contract is going to be the first option to be made redundant.

Selection system: create new positions and then use a full recruitment and selection process possibly the most costly but the most fair.

The employees also have to be offered renewal or re-engagement to avoid the unfair dismissals; it is a simply fact that the company should offer a reasonable position taken in consideration factors such as salary, distance, etc. The unreasonable refusal by the employee to accept the job offer will incur on loss of the Redundancy Payment.

If the company is wrongly assisted and uses a wrongful method it will bring claims of unfair dismissal, those methods are:

Trade Union

Representative Reasons

Health and Safety Grounds

Pregnancy, maternity, paternity, adoption and parental leave

Part-time workers regulations

Not given the proper consultation period such as for individual consultation of less than 20 people, 90 days until the first person is dismissed. Collective consultation between 20-100 people, 30 days and more than 100 people 90 days until first person is dismissed.

We can than conclude that the redundancy process is a very costly and procedural but if right criteria’s are used and proper consultation is taken place will bring to the company the right balance and ultimately bring then again to make profit.

If avoidance can be made in what regards redundancy through those examples previously given it could be a significant and more strategic approach where the company will save time and money and the employees are possibly end up more satisfied with the final results.

GOQs are simply defined when the employers are on the right to discriminate lawfully on certain grounds and specifically ask for people of a particular sex, race, age and sexual orientation. Some employers are going to use different types of ‘excuses’ to discriminate on those grounds and they have to firmly base their discrimination as they will hold liability and not only employers but also advertisers will hold prosecution if happens to be proven that any kind of discrimination has been made unlawfully.

Underneath some of the criteria that are used to discriminate on GOQ grounds are:

Preservation of decency or privacy: An example of this might be a task involving physical contact, some people might reasonably object to a man or woman being involved (e.g. Opera requires sopranos, only woman can be sopranos this is a typical GOQ).

The provision of personal services promoting welfare, education etc to a particular group, where those services are most effectively carried out by a person from that group (e.g. racial group, religious group or particular sex). In such cases, the required group must be clearly and narrowly defined and the person of the required group must personally provide at least one of the services.

The requirement to employ an individual to work in a place where food and drink is provided in a particular setting for which a person or a particular racial group is required for reason of authenticity e.g. requiring a Chinese waiter or waitresses for a Chinese restaurant.

Other cases where GOQ were used are Tottenham Green Under Fives’ Centre v Marshall (1989) and London Borough of Lambeth v Commission for Racial Equality (1990).

On the first one the playgroup of different kinds of ethnics groups was looking for a Afro-Caribbean to take the position of another that had left. The explanation of the employer was that the worker would maintain cultural links as well as dealing with the parents and other personal duties.

For the second case the London Borough wanted to have Asian and Afro-Caribbean applicants only, also using the personal service defence, this case went to the Court of Appeal where then was agreed that the word ‘personal’ makes very important when comes to identity of the giver and the recipient.

For both cases ‘personal services’ was used and found to be acceptable as a GOQ required for the position but we have to bear it in mind that the person employed has to be realistically involved on a personal basis with the tasks of his job title otherwise becomes an unlawful discrimination.

One of the most remarkable cases regarding GOQ to discriminate is Wylie v Dee & Co (menswear) Ltd (1978).

On this case basically the employer was hiring for his clothing shop, on this shop were already seven man working doing the same thing as Ms Wylie suppose to do. But her application was refused as the employers using GOQ to base their decision said that some of their customers will feel embarrassed when comes to inside legs measurement. The employers did not even took in consideration her experience or that he had already done this job before.

For that reason the Tribunal decided that the GOQ used to discriminate Ms Wylie was unlawful, they also took in consideration the fact that many men already know their inside leg measurement as well as if there was going to be a embarrassed customer Ms Wylie could ask one of her male colleagues to take over and get the measurements for her instead.

Some other examples of wrong use of GOQs are:

Racial discrimination, someone who has finished university abroad with a comparable with an UK qualification should be acceptable similar.

When comes to designing the application forms the employers should bear it in mind that they should not discriminate against disabled people.

Age discrimination during the selection process using some jargons “young and dynamic” or “minimum ten years experience”.

However there is sometimes discrimination which is more than welcome when comes to disability or Positive action.

When comes to disability the employers can explicit say on the advertisement ‘only to disabled applicants’ this will be called favourable discrimination.

Positive actions are there to: rebalance the workplace based on past discriminatory actions. They will make sure that some of the minority or even excluded groups have a more competitive opportunity.

That can be done with an introduction of an programme intend to those on minor groups as well as men and woman to get positions in sections of the market that are dominated by the opposite sex.

Employers are allowed by law to take positive action however it is not the same as positive discrimination or affirmative action, which are both unlawful.

But as a conclusion it is important for employers to remember that the courts and tribunals are going to use very restrict and narrow interpretation when comes to consider an GOQ case and if the employer still think that they have a very particular case of GOQ they should seek professional advice.