Employment Law: Maternity and Redundancy

1 December 2022
3 minutes

With rising rates of inflation and the record-breaking cost of living crisis, job security in a post-lockdown world is at the forefront of many people’s minds, particularly those who may soon have more mouths to feed.

Being made redundant during maternity leave

As businesses prepare themselves for the financial storm ahead, many workers and employees may be left vulnerable to redundancy. This often begs the question: ‘Can an employer ever make an employee redundant when on maternity leave?’

The answer is yes, provided that:

There is a genuine redundancy situation in which the employee is properly consulted and where appropriate, selected. This means they must be included in the consultation process throughout their maternity leave and must not be chosen for redundancy for this same reason. The selection criteria must also not disadvantage an employee on maternity leave. Failure to be consulted in the same manner as other employees would be maternity discrimination.

This includes:

  • If sickness absence is considered, any pregnancy-related absence should be ignored. The employee should not be given a low score because they have fewer clients/customers or have not met targets because of their pregnancy or maternity leave.
  • If the employee’s performance has been below their usual standard because of pregnancy-related sickness, this should not be considered.
  • If the employee can show that there is not a genuine redundancy situation and that they have been made redundant as a result of maternity leave, this would be unlawful maternity discrimination.

If this is the case, the employee may appeal their dismissal as well as alleging discrimination and they also may choose to bring a grievance.

Positive Discrimination

Interestingly, one of the less well-known rights in being made redundant on maternity leave dictates that the employer is legally required to offer the employee a suitable, alternative vacancy if one is available without the employee having to apply for it. This is such even if they are not able to commence the role until they have returned from maternity leave. If other employees not on maternity leave are also made redundant, the employee on maternity leave should also get preference over the position. However, if the employee is made redundant before maternity leave, they do not have an automatic entitlement to be offered suitable alternative work and must be considered for alternative work under the same selection criteria.

Both employers and employees alike should be cautious with this detail and always maintain open communication to prevent the consideration of incorrect information in selection.

What is suitable alternative work?

The alternative job must be suitable and appropriate for the employee in consideration of their circumstances. This means it must be no worse than their previous job in relation to location, terms, conditions, and status. If they are offered a job at a different location causing additional childcare and travelling problems, it may not be classed as a suitable job. This means the employee can reject the job and still be legally entitled to redundancy payment. Further, if the employee is entitled to statutory maternity pay and is made redundant after the start of the fifteenth week before the baby is due, but before the beginning of the eleventh week, they may be entitled to statutory maternity pay (SMP) from the beginning of the eleventh week as well as any redundancy payment. However, if they are offered a suitable alternative job and decide not to take it, and are subsequently made redundant, the employer is not legally required to pay the employee redundancy pay.

In all, it is vital that employers are aware of employee rights surrounding redundancy, especially during maternity leave. Redundancy of employees on, or recently returned from, maternity leave can be complex and risky for employers and it is advisable to seek employment law advice prior to implementing any such redundancies.

Rachel McBrinn

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This article is for general guidance only and should not be regarded as a substitute for professional legal advice.

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