Redundancies remain widespread and a number of small businesses have been forced to say goodbye to several members of staff at once. But business owners and HR managers understandably shiver when pregnant women are in the job-loss pool.

As the law stands, no-one can claim unlawful discrimination when a woman is treated more favourably because she is pregnant or has recently given birth. In the past, however, case law has established that a blanket protection for pregnant women encroaches too heavily on the principle of equal treatment.

So where does that leave small employers? And what happens when the choice is between a man with a disability and a pregnant woman? Provided there is a genuine need, employers are of course entitled to make redundancies in order to preserve their business. The trick, however, is to ensure that the process is carried out fairly – especially when one or more employees are explicitly protected by discrimination law due to their race, religious beliefs, age, sex, disability and so on.

The Equality Act

And this is exactly the challenge for employers of pregnant women or women on maternity leave when having to make one or more redundancies. Under the Equality Act, employers are obliged to exercise some leniency towards female employees. Only by doing so can they eliminate any disadvantages that might come with being pregnant or on maternity leave. Male employees are entirely unable to complain about this. That, however, hasn’t stopped them from trying, and a few cases have made it to court only for the principle above to be reaffirmed albeit with a caution that employers shouldn’t got too far in affording special treatment to expectant or new mums.

So where does this leave the small business owner who finds himself having to assess a male employee against a pregnant woman in a redundancy situation? The courts have been very clear: employers must only do what is reasonably necessary to put the employees on an equal footing and remove any disadvantage posed to the female employee because of her pregnancy or maternity. Otherwise, it will be the male employee who is treated unfairly.

The simplest answer is to assess both employees’ skills and experience across a period before the female employee fell pregnant or went on maternity leave, and base the decision on that. Ergo a woman’s ‘score’ shouldn’t simply be artificially inflated because she is pregnant or on maternity leave.

Preferential treatment

The situation becomes a little more complicated when trying to balance the rights of a disabled employee with those of a pregnant woman or new mum. The Equality Act also makes it unlawful for employers to treat disabled employees less favourably than non-disabled. In fact, employers have a duty to make reasonable adjustments for disabled employees so that they can perform and compete on an equal footing with everyone else in the workplace. In a redundancy scenario that means disregarding any absence or performance issues which can be linked to an employee’s disability.

The law is therefore very clear about what employers must do to level the playing field for anyone who might, on the surface, have a disadvantage in the workplace. What it doesn’t do, however, is allow any one protected characteristic to take precedence over another.

Only in one situation does the Equality Act oblige employers to positively discriminate in relation to employees on maternity leave, which could trump everyone else whose role is at risk of being made redundant. If a disabled employee was at risk of redundancy alongside an employee on maternity leave and a suitable alternative role became available which they both applied for, the employer would be obliged to offer the alternative role to the woman.

As you can see, there are no hard and fast rules for employers to follow in this very delicate scenario. The key is to follow a fair process and make sure that the particular disadvantages to each employee protected by law are taken out of the picture before they are assessed for redundancy. The clue is in doing what is ‘reasonably necessary’ to remove any disadvantages but if in doubt, seek advice from an expert solicitor before good intentions land you at the wrong end of an employment claim.