Redundancy During Maternity Leave: Employer Guide

Redundancy is rarely straightforward, but the process presents additional if any of the affected employees are on maternity leave. The law recognises the vulnerable position of pregnant workers and those on maternity leave and affords them specific legal protections. This does not mean you cannot make workers redundant while on maternity, but employers have to be particularly cautious and ensure they are acting in compliance with the law or risk tribunal claims for unlawful discrimination and automatically unfair dismissal.

Employers must ensure that redundancies are handled fairly and comply with employment laws, particularly the provisions under the Equality Act 2010 and the Maternity and Parental Leave Regulations 1999. Employees on maternity leave are entitled to special protections, including priority for suitable alternative roles if their position is at risk.

The primary risk for employers is the potential for discrimination claims. Making an employee redundant because of their pregnancy, maternity leave, or related absence is unlawful. Decisions must be based on objective and justifiable business reasons, with a clear process to demonstrate fairness. Employers should document the redundancy process thoroughly to protect against legal challenges.

Another important consideration is ensuring employees on maternity leave are fully informed about the redundancy process. Employers should maintain effective communication, including sharing information about consultations and any suitable alternative roles. Failure to engage appropriately with an employee on maternity leave could result in claims of unfair dismissal or discrimination.

Providing proper support to employees affected by redundancy and seeking legal or professional advice can help employers manage the process effectively while protecting their organisation’s reputation and ensuring compliance with the law.

In this guide, we explain the legal considerations of making someone redundant during maternity leave.

 

Employee rights during pregnancy and maternity leave

 

Redundancy during maternity leave is a sensitive and strictly regulated process under UK law. Employees who are pregnant or on maternity leave benefit from two key areas of legal protection.

First, there is the ‘protected period,’ which begins from the start of pregnancy and continues until either their maternity leave ends, or they return to work, or they leave their job or 2 weeks after pregnancy ends − for example, a miscarriage During this time, employees are protected from unlawful discrimination related to their pregnancy, maternity leave, or any related circumstances.

Second, employers are legally required to offer a suitable alternative role to employees on maternity leave if their position is at risk of redundancy. This offer must be made before any other colleagues are considered for the role.

Crucially, most of these legal protections against discrimination apply to all workers, not just employees, from the very first day of their engagement. This includes casual workers, agency workers and freelancers. However, it is important to note that rights to suitable alternative roles in redundancy situations and maternity leave are specific to employees. While self-employed individuals and freelancers are protected from discrimination, they may not be entitled to the same redundancy or leave-related rights as employees.

 

Employee rights during the protected period

 

It would be unlawful discrimination if, during the protected period:

 

• An employer treats an employee unfavourably during the protected period because of her pregnancy or as a result of an illness she contracted as a result of it.
• An employer treats an employee unfavourably because she is on maternity leave or is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.
• The Act also states that even if the above-mentioned discriminatory treatment occurs after the protected period has ended, it will be treated as having occurred during the protected period if the decision to implement it was made during the protected period.

 

During the protected period, the employee in question is not required to compare their treatment to that of anyone else (for example, a man) in order to prove that they were discriminated against.

Workers are protected from pregnancy discrimination as soon as their employer knows, believes or suspects they are pregnant, although workers do not have to notify their employer of the pregnancy until 15 weeks before their due date.

If the employee chooses not to notify their employer, and as such their employer is not aware of the pregnancy, she would not benefit from maternity rights such as time off work for antenatal appointments and she would not benefit from protection from pregnancy discrimination if she is treated unfavourably, for example, if she is disciplined or dismissed for absence due to pregnancy-related illness.

 

Alternative suitable roles

 

Under the Employment Rights Act 1996 and Regulation 10 of the Maternity and Parental Leave Regulations 1999, an employer must offer an employee on maternity leave who is facing redundancy suitable alternative work if it exists, and this offer should be given priority over other employees facing redundancy, even if they are better suited to the role. In other words, if a suitable alternative position exists, it must be offered to the maternity leave employee first.

Remember that your obligation to review suitable alternative vacancies within your organisation during the redundancy process continues until the employee’s contract expires.

It’s also worth noting that this protection only applies to employees on maternity leave; it doesn’t cover pregnant women who haven’t yet begun their maternity leave.

 

Making someone redundant during maternity leave

 

To dismiss an employee who is on maternity leave or pregnant by redundancy, employers must ensure they follow a fair and lawful dismissal process. You must be certain that the employee in question is not selected for redundancy because of their pregnancy or the fact that they are on maternity leave, and you must be able to demonstrate this. Consider the following:

 

Is there a genuine redundancy?

 

A genuine redundancy occurs when you no longer require certain employees because the business for which they work has closed or you no longer require as many employees to complete the work. As with all redundancies, you should also first consider whether you can avoid redundancies by, for example, offering employees reduced hours or unpaid time off.

If the employee would not have lost their job if she had not gone on maternity leave – for example, if the employer considers they can function without the employee while she is on maternity leave – this would not typically constitute a true redundancy situation.

 

Have you consulted with affected employees?

 

This entails notifying all employees, including those on maternity leave, of the possibility of redundancies and keeping in touch with them throughout the consultation process. If you fail to consult an employee on maternity leave about their redundancy, this may be considered unlawful discrimination.

There are no prescribed requirements as to how this consultation should be conducted if there are between one and nineteen employees being made redundant, except that it should be ‘meaningful’. It is generally advisable, however, to follow the same guidance as when there are twenty or more redundancies (so-called collective consultation), ensuring constructive communication and information sharing between the company and affected employees.

 

Are the redundancy selection criteria fair?

 

Individual skills and qualifications, as well as an employee’s performance and overall capability at work, are commonly used redundancy criteria. When using material from performance appraisals, make sure that they present a balanced picture of the employee, as an employee’s appraisal may show lower scores than usual during pregnancy or maternity leave.

If you decide to use attendance and sickness records as a criterion, make sure to exclude any sickness or absence due to pregnancy or maternity leave to avoid discriminating against pregnant or maternity-leave employees.

 

Have you considered and offered alternative roles?

 

If there are suitable alternative positions available for those on maternity leave, these must be offered to the employee(s) on maternity leave before any other affected employees, even if those other employees are better qualified for the role. If the employee refuses the job offer for an unreasonable reason, they may lose their right to a redundancy payment. However, it would be reasonable for them to decline the job due to health, personal or family obligations.

 

Managing legal risk of redundancy during maternity leave

 

You have to carry out a meaningful consultation process with the employee in order to mitigate the legal risks. The golden rule is that this process should take enough time for both the employer and the employee to fully consider their respective positions as well as any feedback received during the consultation. In most cases, two separate meetings with an employee should suffice, but depending on the circumstances, more may be required.

When an employee is not working and on maternity leave, this can be complicated. Because there is no legal requirement for the consultation to be conducted face-to-face, you might want to consider holding it virtually. In this case, be sure to get the employee’s permission first and make sure they don’t feel pressured into participating in a video conference. A scheduled phone call will be easier to manage and arrange for some employees. You should also make arrangements for a trade union representative or a colleague to attend if necessary.

The key is to ascertain the employee’s preferences and needs early and to try to accommodate these as much as possible.

It’s critical that the employee isn’t given a “done deal” for their redundancy. This will render the consultation process null and void, potentially resulting in a claim for unfair dismissal against you. As a result, the first piece of information you give employees should be a high-level overview, including why you need to make redundancies and who is at risk.

You should explain why the employee has been placed in ‘the pool,’ the timelines, and the redundancy packages, if any, at the first individual meeting. You must make it clear to the employee at all times that the consultation meetings are an opportunity for them to ask questions and provide feedback to you.

It is a good idea to have someone take minutes at meetings so that they can be distributed to the attendees afterward.

If you decide to dismiss an employee who is pregnant or on maternity leave, you should meet with them again to explain the decision and the outcome of the selection process, and to see if there are any other job openings in the company.

If you haven’t already done so, you should allow the employee to be accompanied by a trade union representative or a coworker at the final dismissal meeting.

You must also inform the employee of their right to appeal the dismissal decision and provide them with instructions on how to do so.

 

Failure to meet your obligations

 

The Employment Rights Act of 1996 lists redundancy as one of the five potentially fair reasons for dismissing an employee. However, if your employee demonstrates that they were dismissed because they were pregnant or on maternity leave, this is considered an automatically unfair dismissal. It is more straightforward for employees to establish automatic unfair dismissal.

If the worker is able to prove their dismissal was due their pregnancy or maternity, they do not then need to show that their employer acted unreasonably or failed to follow a fair procedure, as is necessary to establish the basis of an ordinary unfair dismissal claim. The reason, in itself, will be considered automatically unfair, with no further consideration as to either the reasonableness of the decision to dismiss or the procedural fairness of the employer’s actions.

If an employee wins an unfair dismissal claim in an Employment Tribunal, the Tribunal can make both a ‘Basic Award’ and a ‘Compensatory Award.’ These are orders requiring the employer to pay the employee a certain amount of compensation.

f an employee wins their discrimination claim as well, the Tribunal can make any compensatory award it wants. This is not subject to a statutory cap and can take into account injury to the employee’s feelings.

Even if you have legitimate non-discriminatory reasons for dismissing a pregnant or maternity leave employee, if you mishandle the redundancy process, your employee may be able to successfully sue you for unlawful discrimination, for which you could be ordered to pay an uncapped award of damages.

Following a thorough and well-documented individual consultation process should allow you to demonstrate that you acted reasonably in dismissing the employee due to redundancy while she was on maternity leave.

 

Need assistance?

 

We can help with all aspects of workforce management and planning, including redundancies, dismissals, settlements and contentious exits. Working closely with specialists in HR, we deliver comprehensive advice on the options open to you as an employer and provide practical support through the redundancy process, with particular experience in complex circumstances such as managing redundancy during maternity leave. For help and advice with a specific issue, speak to our experts.

 

Managing Redundancy During Maternity Leave FAQs

 

Can an employee on maternity leave be made redundant?

Yes, but only if the redundancy is genuine and not related to their maternity leave or pregnancy. Employers must follow a fair process and ensure compliance with legal protections.

 

What protections do employees on maternity leave have?

Employees on maternity leave are entitled to special protections. If their role is made redundant, they must be given priority for any suitable alternative vacancies within the organisation.

 

How should employers communicate with employees on maternity leave during redundancy?

Employers should maintain open and respectful communication. They must inform employees about the redundancy process, including consultations and any suitable alternative roles, while being sensitive to their circumstances.

 

What happens if an employer does not offer a suitable alternative role?

Failing to offer a suitable alternative vacancy to an employee on maternity leave when one is available could result in claims of unfair dismissal or discrimination.

 

Can redundancy be considered unfair if it occurs during maternity leave?

Redundancy may be deemed unfair if it is directly or indirectly linked to the employee’s maternity leave, or if the process is not conducted fairly and transparently.

 

What records should employers keep during the redundancy process?

Employers should document every stage of the redundancy process, including consultation notes, criteria used for selection, and evidence of efforts to identify suitable alternative roles.

 

Are employees on maternity leave entitled to redundancy pay?

Yes, if they qualify for statutory redundancy pay, their maternity leave does not affect their entitlement. Statutory redundancy pay is calculated based on their normal weekly pay, not the reduced maternity pay.

 

Can redundancy affect maternity pay?

If an employee is made redundant, statutory maternity pay will continue for the full entitlement period unless they begin a new job or are otherwise disqualified.

 

Glossary

 

Term	Definition
Redundancy	A situation where an employer reduces their workforce because a role is no longer needed due to business changes.
Maternity Leave	A statutory leave period available to eligible employees who are pregnant or have recently given birth, lasting up to 52 weeks.
Equality Act 2010	UK legislation that protects employees from discrimination, including discrimination based on pregnancy or maternity.
Maternity and Parental Leave Regulations 1999	Legal provisions outlining the rights of employees during maternity and parental leave, including redundancy protections.
Suitable Alternative Role	A role that is offered to an employee at risk of redundancy, which must be appropriate for their skills, experience, and circumstances.
Statutory Redundancy Pay	A financial payment made to employees who are made redundant, provided they meet qualifying criteria such as length of service.
Unfair Dismissal	A legal term for when an employee is dismissed without a fair reason or without following proper procedures.
Discrimination	Unlawful treatment of an employee based on protected characteristics, such as pregnancy, maternity, or gender.
Consultation	A legal requirement for employers to discuss redundancies with affected employees, including their reasons and options.
Priority for Suitable Roles	A legal right for employees on maternity leave to be offered suitable alternative employment before other at-risk employees.
Normal Weekly Pay	The regular pay an employee earns before deductions, used to calculate statutory redundancy pay even during periods of reduced maternity pay.