Mamma Mia.

Update – 3 April 2014
Mamma Mia

I recently attended a charity quiz where we had to name the song from which certain lyrics came and one of the answers was “Mamma Mia”.  So it got me thinking, what are the similarities between “Mamma Mia” and employment law?

Mamma mia, here I go again.  My my, how can I resist you?

We should all know that “pregnancy and maternity” is one of the nine protected characteristics under the Equality Act 2010, but that doesn’t mean that all pregnant staff and those on maternity leave are “untouchable” in a redundancy exercise.

There’s nothing wrong with an employer making a commercial decision that such a person’s role is redundant or that they are to be provisionally selected for redundancy from a pool of staff with interchangeable roles.  However, when it comes to deciding whether suitable alternative employment is available, this is where those on maternity leave (but not those who are pregnant) have what I call “super-priority” over any other candidate (including other potentially redundant staff) for suitable alternative employment.  This is the case even if they are not the best person for the role.

Yes, I’ve been brokenhearted.  Blue since the day we parted

Unless requested otherwise, an employer may make “reasonable contact” from time to time during an employee’s maternity leave which might include being sent email bulletins, details of vacancies and information about social events or training courses.  The employee on maternity leave may also take what are known as “keeping in touch” or “KIT” days during their leave without bringing their leave to an end.  This allows them to come back into the workplace for up to ten days (for which they should be paid) to, say, attend team meetings or receive training.  By keeping in touch with them, this will hopefully keep those blues at bay.

Why, why did I ever let you go?  Mamma mia, now I really know.  My my, I could never let you go

If you do have to let her go when she is pregnant or on maternity leave, the dismissal will be automatically unfair where the only (or principal) reason for the dismissal or selection for redundancy is related to pregnancy, birth or maternity leave.  Once upon a time, I dealt with a situation where the employer had scribbled “pregnant” at the top of the redundancy selection score sheet.  According to the manager, this was to ensure that they didn’t discriminate against her in the scoring.  We settled.

And finally (without reference to any song lyrics), the Court of Justice of the European Union has just held that it is not unlawful discrimination to deny maternity or adoption leave and pay to mothers who had children via a surrogate on the basis that the law is there to protect women who have been pregnant and have given birth to a child.

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