It is unlawful to select an employee for redundancy because she is pregnant. If you want to avoid claims for unfair dismissal and/or sex discrimination, ensure that your selection is based on objective criteria such as time-keeping, absence levels (ignoring maternity leave), and knowledge and/or skills. It is also unlawful to select an employee for redundancy because she is a mother, although it might be more difficult for her to prove sex discrimination because she would have to demonstrate that she had received less favourable treatment than comparable fathers.
Be aware of the risk of indirect discrimination, too. For example, you might want to keep on people who are willing to take on overtime from time to time, or to make part-time employees redundant before full-time employees. But either policy could indirectly discriminate against mothers, who are generally the main child carers, and may not be able to meet your selection criteria. Even if you applied the same criteria to both men and women, you would effectively be indirectly discriminating against women.
The European Court of Justice (ECJ) has accepted that increases in pay according to length of service can indirectly discriminate against women, because women generally work fewer years than men. Although the court accepted that, in general, length of service went hand in hand with experience, and experience would enable a worker to perform better, it also accepted the 'serious doubts' the claimant had raised about such improvement in performance in this case. Where a worker can raise serious doubts about the benefit provided by extra experience, length of service may be a form of indirect discrimination.
Employers who expect their employees to carry out unpaid overtime also need to avoid the risk of unfair sex discrimination, in view of a recent European ruling.
In the European case a part-time teacher in Germany worked 23 hours a week (as opposed to 26.5 hours expected of full-timers), and was only given time off in lieu, or overtime pay, if she worked more than an additional five hours in the week.
Since the employee often did not work as many as five extra hours per week, and thereby failed to qualify for overtime pay, and since more women than men work part-time, the court held that the practice was contrary to the principle of equal treatment between men and women, unless it could be justified on the ground of objective factors.
This echoes a previous discrimination case in which a court ruled that a female employee who can show "serious doubt" that longer service makes a worker better at the job, can claim that higher pay for longer-serving workers is sex discrimination, because women generally have shorter periods of service than men.
