No, your client is mistaken in this. Women on maternity leave should not be shielded from any redudancy procedures. They do, however, have the right not to be made redundant where the reason why is the pregnancy or maternity leave, and the right to be offered any alternative roles as a priority.
As a result of these protections, there is a greater burden on your client to justify the redundancy itself, and the selection process.
In Eversheds Legal Services Ltd v De Belin, a male employee brought a claim for sex discrimination on account of having been selected for redundancy over a female colleague who was on maternity leave. During the selection process, the employer had given the female employee the maximum notional score for one of the selection criteria. This ultimately gave her a half point lead over her male colleague and led to his selection for redundancy.
The EAT ruled that the obligation to protect employees who are pregnant or on maternity leave relates only to what is “reasonably necessary to compensate them for the disadvantages occasioned by their condition”. What this does not mean is that these employees should get favourable treatment. Compensation to account for pregnancy and maternity should be limited to that which is proportionate for the disadvantages caused by pregnancy or maternity leave. As the measures here had gone too far by giving favourable treatment, the male employee was successful in his sex discrimination claim.
Had the selection process been approached differently, the respondent could have relied on Section 13(6)(b) of the Equality Act 2010:
“no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”,
which essentially means that men cannot claim sex discrimination because of special treatment afforded to women on account of maternity leave.
There are plans to extend this protection to 6 months after the employee returns to work after maternity leave, but it is not yet clear when this will become law.
In light of the above, your client can consult on redundancy with this employee at the same time as others in the pool. She may not be able to come in for meetings, but it is possible to hold them over video conferencing if appropriate. Selection criteria should be balanced, not favouring any of the employees, and accommodations may need to be made for her scores, such as looking at the period before she went on maternity leave for performance or productivity related scores. She should be considered first for any new roles created, and only made redundant if the evidence clearly shows her to be the one appropriate for selection.
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