Can You Make Someone Redundant on Maternity Leave

Pregnant workers and those on maternity leave are afforded particular employment law protections.

If your organisation is considering making redundancies, potentially affecting someone who is pregnant or on maternity leave, you will need to understand the rules that apply to avoid unfair dismissal and unlawful discrimination complaints.

In this guide, we look at the legal position in relation to dismissals during pregnancy and maternity leave, and how employers can manage legal risk in this area. We also look at the proposed Pregnancy & Maternity Bill, which is intended to provide enhanced legal protections against redundancy for workers after maternity leave.

 

Legal protections for workers during pregnancy and maternity leave

 

Legal protections for pregnant employees and those on maternity leave in the UK are primarily governed by the Equality Act 2010 and the Employment Rights Act 1996. The Equality Act prohibits discrimination against women due to pregnancy or maternity, safeguarding them from unfavourable treatment related to their condition. During this period a woman is protected against discrimination that arises as a result of her pregnancy or entitlement to maternity leave, including:

 

• Any illness related to her pregnancy, or absence because of that illness
• Being on maternity leave, or seeking to take, taking or having taken maternity leave to which she is entitled.

 

The Employment Rights Act offers additional protections, particularly concerning redundancy situations during maternity leave.

Under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, if a redundancy situation arises during an employee’s maternity leave, and it’s not feasible for the employer to continue her current role, she must be offered any suitable alternative vacancy, if available. This provision effectively gives women on maternity leave priority over other employees at risk of redundancy.

Recent legislative developments have extended these protections. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, along with The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024, have expanded the ‘protected period.’ Previously, this period spanned from the start of pregnancy until the end of maternity leave. With the new regulations, the protected period begins when an employee informs her employer of her pregnancy and extends until 18 months after the birth. This extension ensures that a mother returning from a year of maternity leave receives an additional six months of redundancy protection.

Employers must ensure that any redundancy selection criteria are fair, objective, and compliant with the Equality Act 2010. It’s crucial to avoid selection based on pregnancy or maternity leave status, as this constitutes automatic unfair dismissal and discrimination. Additionally, employers should be aware of the extended protected period and ensure that employees within this timeframe are given priority for suitable alternative vacancies in redundancy situations.

 

What is the protected period?

 

The protected period begins from the start of pregnancy and now extends until 18 months after the birth of the child, under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. This extension ensures that a mother returning from 12 months of maternity leave has an additional six months of redundancy protection. If an employee is not entitled to maternity leave (e.g., non-employees), the protected period ends two weeks after the pregnancy ends.

Discrimination outside the protected period may still be unlawful if it relates to sex under the Equality Act 2010.

During the protected period, individuals are safeguarded under UK employment laws, including the Equality Act 2010, the Employment Rights Act 1996, and recent enhancements introduced through the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 and related regulations. The protections during this period are designed to prevent discrimination and ensure fair treatment for pregnant individuals and new parents.

Employees who face unfair treatment, dismissal, or redundancy during the protected period may bring claims for discrimination, unfair dismissal, or breaches of redundancy obligations. Employers found to be in breach the law may face legal penalties, including compensation awards.

Key protections during the protected period include:

 

Protection from Discrimination

Employers cannot treat an employee unfavourably due to pregnancy, maternity leave, or related conditions. Examples of discrimination include dismissal, withholding opportunities, or reducing responsibilities due to pregnancy or maternity leave.

 

Automatic Unfair Dismissal

Dismissing an employee due to pregnancy or maternity leave is deemed automatically unfair. Dismissal decisions must be unrelated to their pregnancy or maternity leave and based on legitimate business reasons.

 

Enhanced Redundancy Protections

During the protected period, if redundancy arises, employers must offer suitable alternative vacancies (if available) before considering other employees. Employers are obligated to prioritise individuals within the protected period when assigning such roles.

 

Extended Protected Period

The protected period starts when the employee informs their employer of their pregnancy and continues until 18 months after the child’s birth. This extension ensures additional redundancy protections for those returning from maternity leave.

 

Fair Redundancy Selection

Employers must use objective and non-discriminatory criteria for redundancy selection, excluding factors related to pregnancy or maternity. Attendance records cannot consider pregnancy-related absences.

 

Right to Reasonable Adjustments

Employers are required to make reasonable adjustments for pregnancy-related needs, such as flexible working arrangements or changes to duties, to ensure a safe and supportive working environment.

 

Entitlement to Suitable Alternative Employment

Employers must offer any suitable alternative vacancies to the individual affected by redundancy during the protected period, ensuring priority over other staff.

 

 

Can you make someone redundant while pregnant or on maternity leave?

 

Employers can legally make an employee redundant while they are pregnant or on maternity leave, but there are strict rules and protections in place to ensure the process is fair and compliant with UK law. Redundancy must be genuine and unrelated to the employee’s pregnancy or maternity leave. Employers must handle these situations carefully to avoid claims of discrimination or unfair dismissal.

Firstly, redundancy cannot be used as a pretext to dismiss an employee because of pregnancy or maternity leave. If the reason for redundancy is linked to the employee’s pregnancy or their absence on maternity leave, this would be considered automatically unfair dismissal under the Employment Rights Act 1996 and discrimination under the Equality Act 2010. Employers must provide objective evidence that the redundancy is due to a genuine business need, such as organisational restructuring or a reduction in roles.

To avoid any potential discriminatory effects, it is often a good idea to use criteria that are largely objective and measurable and do not in themselves discriminate against certain individuals or groups, including new and expectant mothers.

However, as an employer, you have a fair amount of flexibility in determining which redundancy selection criteria to use. This could include, for example:

 

• An employee’s standard of work and/or performance
• An employee’s skills, qualifications and/or experience
• An employee’s attendance record and/or disciplinary record.

 

That said, even with some objective redundancy criteria, caution must still be exercised, for example, when using an employee’s attendance record this must not include absences relating to pregnancy and maternity.

You could also apply the last-in-first out method, although this has been largely discredited as a sole means of selection for redundancy because of its potential to indirectly discriminate against younger people or women who tend to have shorter periods of employment.

Employers must ensure that redundancy selection criteria are fair, transparent, and do not disadvantage pregnant employees or those on maternity leave. For example, using attendance records in the selection process must exclude absences related to pregnancy or maternity leave. Similarly, caution should be exercised with methods such as “last in, first out,” as they may indirectly discriminate against women with shorter employment tenures due to maternity leave.

One of the most important obligations during redundancy involving maternity leave is the requirement to offer suitable alternative vacancies. Under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, if a redundancy situation arises during maternity leave and a suitable alternative role is available, the employee must be offered this role before any other employees. This gives the employee priority and is an absolute obligation for employers to fulfil.

Employers should document every stage of the redundancy process to demonstrate compliance with legal requirements. Consulting with the employee, providing clear communication about redundancy reasons, and offering appropriate support are essential steps to ensure fairness. Seeking legal advice or HR guidance can also help employers manage redundancy cases involving pregnancy or maternity leave effectively and reduce the risk of legal claims. By following these practices, employers can ensure lawful and respectful handling of such situations.

 

Settlement agreements

 

Using a settlement agreement to dismiss an employee who is pregnant or on maternity leave can be a practical solution for employers in certain circumstances, but it requires careful handling to ensure compliance with employment law. Settlement agreements are legally binding contracts that allow an employee and employer to mutually agree on terms for ending the employment relationship. These agreements often include a financial settlement and provisions to prevent future legal claims.

For employers, offering a settlement agreement rather than proceeding with redundancy can provide clarity and a sense of resolution for both parties. However, it is essential to ensure that the offer is not perceived as discriminatory or coercive, particularly when the employee is pregnant or on maternity leave. Employers must be able to demonstrate that the decision to propose a settlement is not linked to the employee’s pregnancy or maternity leave status but is based on legitimate business reasons.

The key to using settlement agreements effectively lies in the way they are presented. Employers should approach the discussion sensitively and professionally, making it clear that the agreement is an alternative to redundancy or other potential outcomes. Providing clear, written documentation about the terms of the settlement and allowing the employee adequate time to consider the offer are important steps. It is a legal requirement that employees seek independent legal advice before signing a settlement agreement, and employers may need to contribute to the cost of this advice.

Settlement agreements can be beneficial for avoiding lengthy disputes or potential claims for unfair dismissal or discrimination. They provide a clean break for both parties and protect the employer from future legal action. However, employers must ensure that the terms offered are fair and reasonable, particularly when dealing with an employee who has enhanced protections due to pregnancy or maternity leave. Any suggestion of coercion or unfair treatment can undermine the agreement and lead to claims.

Employers should take legal advice when considering a settlement agreement to manage risks effectively, and achieve an outcome that respects the employee’s rights and protects the organisation’s interests.

 

Need assistance?

 

If you are considering making a new or expectant mother redundant, you should always seek expert legal advice from an employment law specialist.

DavidsonMorris’ employment lawyers can help with all aspects of workforce management, including maternity and pregnancy rights, policies and procedures. Working closely with our specialist HR colleagues, we can advise on a holistic approach to managing issues relating maternity and pregnancy, including the implications of the new Maternity & Pregnancy Bill on your organisation. For help and advice, speak to our experts.

 

Redundancy during pregnancy or maternity leave FAQs

 

Can an employer make a pregnant employee redundant?

Yes, but only if the redundancy is genuine and not related to the employee’s pregnancy. Employers must follow fair selection processes and ensure the decision is based on legitimate business needs rather than discriminatory reasons.

 

What is the protected period for new or expectant mothers?

The protected period starts when an employee informs their employer of their pregnancy and continues until 18 months after the child’s birth. This provides enhanced protection against redundancy during and after maternity leave.

 

What are an employer’s obligations during a redundancy situation?

If redundancy arises, employers must prioritise new or expectant mothers for any suitable alternative vacancies before considering other employees. This is a legal obligation under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999.

 

What happens if redundancy is linked to pregnancy or maternity leave?

Redundancy decisions based on pregnancy or maternity leave are automatically unfair and discriminatory under the Equality Act 2010 and Employment Rights Act 1996. Employers could face tribunal claims and unlimited compensation awards.

 

Do absences due to pregnancy count in redundancy selection?

Absences related to pregnancy or maternity leave must be excluded when using attendance as a redundancy selection criterion.

 

What if there are no suitable alternative vacancies?

If no suitable alternative roles are available, the employer must document this thoroughly. However, employers are expected to make reasonable efforts to identify or create such roles.

 

How can employers reduce the risk of legal claims?

Employers should ensure fair and transparent processes, maintain detailed records, and seek legal or HR advice to comply with enhanced protections and avoid discrimination claims.

 

Glossary

 

Term	Definition
Protected Period	The period from when an employee informs their employer of their pregnancy until 18 months after the child’s birth. Provides enhanced redundancy protections.
Redundancy	A form of dismissal due to a reduction in the workforce or the closure of a workplace or role.
Equality Act 2010	UK legislation that prohibits discrimination based on protected characteristics, including pregnancy and maternity.
Employment Rights Act 1996	Legislation that outlines the legal rights of employees, including protections against unfair dismissal.
Regulation 10	A rule under the Maternity and Parental Leave etc. Regulations 1999 requiring employers to offer suitable alternative vacancies to employees on maternity leave before others during redundancy.
Suitable Alternative Vacancy	A role offered to an employee at risk of redundancy that is appropriate for their skills and qualifications, prioritised for those on maternity leave.
Automatic Unfair Dismissal	A dismissal considered unlawful due to its discriminatory basis, such as being linked to pregnancy or maternity leave.
Tribunal Claim	A legal claim brought by an employee against their employer to an employment tribunal for issues such as unfair dismissal or discrimination.
Discrimination	Unfair treatment based on protected characteristics, including pregnancy and maternity, prohibited under the Equality Act 2010.
Attendance Records	Documentation of an employee’s work attendance, excluding absences related to pregnancy or maternity when used in redundancy selection.
Compensation Award	Financial damages ordered by a tribunal or court to be paid to an employee for unlawful treatment, such as discrimination.
Civil Courts	Courts that handle non-criminal disputes, including claims related to employment issues outside of tribunal time limits.
HR Advice	Professional guidance sought by employers to ensure compliance with employment laws and fair treatment of employees.