Redundancy During Maternity Leave: Know Your Legal Rights and Protections

Maternity leave is meant to be a time for you to focus on your new baby – not to have to worry about job security. Unfortunately, some employees find themselves facing the prospect of redundancy at exactly this time.   

The good news is that the law provides women facing redundancy during maternity leave with strong protection to ensure that they are treated fairly. In this article, we answer some of our most frequently asked questions about redundancy and maternity leave.

Can I be made redundant on Maternity Leave?

Yes, contrary to popular belief, you can be made redundant whilst on maternity leave. However, it will only be lawful for an employer to make an employee redundant whilst on maternity leave if there is a genuine redundancy situation and a fair procedure has been followed.

You cannot be made redundant because you are on maternity leave; this would likely amount to automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and maternity discrimination under the Equality Act 2010.

What is a Genuine Redundancy?

A genuine redundancy usually happens for one of three reasons:

• The business or workplace is closing (this can be temporary or permanent)
• The type of work you do will no longer be carried out at your place of work
• Fewer employees are needed to do the particular type of work that you do

Some times an employer might say that your job role is redundant to cover up the true reason for dismissing you. Signs that might indicate that your redundancy whilst on maternity leave is not genuine include:

• Your employer retaining your maternity cover to carry out your work
• Your employer recently taking on other people doing the same or similar work to you  
• Your employer making negative comments about your pregnancy or maternity leave or your return to work
• Your employer’s attitude towards you or your work changing since announcing your pregnancy/maternity leave
• You are being treated differently from other people at work

I don’t think my redundancy is genuine. What rights do I have?

If there is not a genuine redundancy situation, and your employer doesn’t have another fair reason to dismiss you, you may have a claim against your employer for (automatic) unfair dismissal and/or maternity discrimination.

What is a fair redundancy procedure?

In addition to there being a genuine redundancy situation, your employer must also follow a fair redundancy process. This should include:

• Identifying an appropriate group of employees (known as a “pool”) carrying out the same or similar work to consider for redundancy
• Identifying and applying objective and non-discriminatory selection criteria to assess who is selected for redundancy from the pool.  Potential criteria might include performance and ability, skills and knowledge, disciplinary records, length of service and attendance. If attendance is used, your employer should disregard any time away from work for pregnancy related sickness or absence on maternity leave or parental leave
• Informing and consulting the affected employees about potential redundancies.  You have a right to be consulted even if you are on maternity leave
• Considering and offering as a priority to you suitable alternative employment within the business (see below)
• Allowing those selected for redundancy to appeal the employer’s decision

I don’t think a fair redundancy procedure has been followed. What rights do I have?

If your employer does not follow a fair redundancy process or you are selected for redundancy during the process because of your maternity leave or factors related to your maternity leave (e.g. the length of your leave), you may have a claim against your employer for (automatic) unfair dismissal and/or maternity discrimination.

Are there any additional legal protections as a woman on maternity leave?

Yes. Under Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (“MPL Regulations”), where a redundancy situation exists and “it is not practicable by reason of redundancy”, for the employer to continue to employ you under your existing contract of employment, and a suitable alternative vacancy is available, your employer must first offer it to you, before any other employees. Mirror protections exist for those who take adoption leave or shared parental leave.

The provision gives protected employees priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination.

What is a suitable alternative vacancy?

In considering whether a vacancy is a suitable alternative, an employer should consider the following:

• Whether the work done is both suitable and appropriate for the employee; and
• That the terms and conditions of new employment are not substantially less favourable to those under the previous contract

It is for the employer to determine whether a vacancy is suitable based on its own knowledge about the employee’s personal circumstances and work experience.

When does my employer have to offer me a suitable available vacancy?

The protection under Regulation 10 only applies once the employee on maternity leave has been selected for redundancy. An employer cannot exclude an employee on maternity leave from a redundancy pool/ the selection process or simply move them to the alternative vacancy as a way of bypassing the process.  To do so, may result in claims of sex discrimination/ unfair dismissal against the employer by other employees.

How long does the right to be offered a suitable available vacancy last?

The right lasts for 18 months from your child’s date of birth (if notified to your employer) or 18 months from the Expected Week of Childbirth, if not notified. For example, if you return from maternity leave 12 months after the birth of your child, you will have the right for six months after returning to work. The period during which you are protected is known as the “redundancy protected period”.

What if someone else without redundancy protection is more suitable for the role than me?

If a suitable alternative exists, your employer must offer this to an employee who has redundancy protection. This applies even if other colleagues are more suitable for the role.

What happens if there are not enough suitable vacancies for everyone who has redundancy protection?

In these circumstances, the employer will have to decide who is most suitable for the roles they have. This might include considering an employee’s skills, job knowledge and experience.

I believe there was a suitable alternative vacancy, but this was not offered to me as a priority? What rights do I have?

Depending on the exact circumstances, you may have a claim for (automatic) unfair dismissal or maternity discrimination.

Can I refuse a suitable alternative vacancy?

It is ultimately up to you whether or not you wish to accept a suitable alternative vacancy.  If you unreasonably refuse a suitable offer, however, you will lose your right to a redundancy payment. Further, and whilst you may still be able to argue that your dismissal is unfair on other grounds, it will not be automatically unfair under the MPL Regulations.

What should I do if I think the redundancy process has been handled unfairly or I am being discriminated against because of my maternity?

If you think your redundancy is being handled unfairly or that you are being discriminated against because of your maternity, you should seek legal advice. In certain circumstances, you may have a claim for (automatic) unfair dismissal and/or maternity discrimination.

Advice should be sought early. You normally only have three months less one day from the date of the unlawful act/omission to start a claim in the Employment Tribunal.

How can Pinney Talfourd help?

At Pinney Talfourd, we regularly help employees:

• Review whether the redundancy process they are undergoing is fair and lawful
• Negotiate enhanced redundancy packages and settlement agreements maximising compensation for employees
• Bring claims for unfair dismissal or pregnancy/ maternity discrimination

If you are facing redundancy during maternity leave and would like advice on your position, please contact either Charlotte Buck or Alex Pearce in our employment team to discuss further.