Redundancy on maternity leave

We explain if you can make an employee on maternity leave redundant

First published on Friday, Feb 26, 2021

Last updated on Friday, Nov 04, 2022

When considering redundancies, employers must choose employees to make redundant carefully. They must use a fair process, one that accounts for alternatives to redundancies and appraises how essential their role is.

However, what if a role is no longer essential and the employee is on maternity leave? Can you make someone redundant on maternity leave?

Redundancy should be a last resort, especially when an employee is on maternity leave. But if it’s essential and unavoidable, it is possible to do so.

Ideally, maternity and redundancy should remain separate. You need to follow a fair process for deciding who to make redundant, though this can qualify someone on maternity leave for redundancy.

This means that redundancy during maternity leave in the UK is not unheard of. If you are considering making this difficult decision, we are here to help.

Can someone be made redundant while on maternity leave?

Before considering redundancy for any employee, you must make it clear that it’s a possibility of it in their existing contract of employment.

Employees on maternity leave have certain special protections. The Equality Act 2010 grants redundancy rights when on maternity leave.

Redundancy whilst on maternity leave rights consist of the following prohibitions:

  • Selecting employees on maternity leave for redundancy or dismissal because of maternity leave
  • Making changes to an employee on maternity leave’s job during their absence
  • Failing to consult employees on maternity leave about any changes to their role during their absence
  • Failing to provide a suitable alternative vacancy for employees on maternity leave at risk of redundancy

However, it’s not an automatic unfair dismissal. It's also not automatically an act of discrimination if you dismiss an employee by redundancy whilst on maternity leave.

An employee can make a discrimination at work claim if you select them for redundancy in preference to other employees with similar positions who do not share their protected characteristic.

If an employee can prove that certain factors influenced the employee’s selection, they can take an employer to an employment tribunal. These factors include:

  • Pregnancy.
  • Childbirth.
  • Maternity suspension on health and safety grounds.
  • Taking or requesting maternity leave or benefits.

If you consider an employee that’s on maternity leave, you must follow the standard warning and consultation procedures.

These procedures include:

  • At risk of redundancy letters: inform staff they’re at risk of redundancy. If you’re making more than 19 employees redundant, this is a collective redundancy. If it is a collective redundancy, you must invite them to a consultation process
  • Consultation process: you must invite employees considered for collective redundancy to a consultation meeting. While not essential, you can also do this for individual redundancies. During this process, both you and the employee can put forward alternatives to redundancy.
  • Decision making: you must not make a decision for the redundancy process during any consultation meeting. You must make one after any meetings. Once you make a decision, inform the employees of it. They do not need to request a written confirmation of the decision, you must provide it.

If you dismiss an employee during pregnancy, you must provide a written summary of the reasons for dismissal. If they believe the reasons reflect their pregnancy or they doubt the validity of the reasons provided, they can raise a grievance and take employers to an employment tribunal.

The same applies to any employee dismissed during maternity leave.

During the redundancy decision process, you must consider suitable alternatives.

Suitable alternatives.

When considering employees who are at risk of redundancy, you must provide offers for suitable alternative roles. You must prioritise these roles for employees on maternity leave.

Once the employee returns to work, this prioritised protection ends.

This priority and additional protection is also available to those on adoption leave and shared parental leave.

When considering redundancy on maternity leave, suitable alternatives include:

  • Alternative vacancies: you must offer an employee on maternity leave any alternative vacancies first. An employee can raise a grievance of sex discrimination if they are not offered one while a male employee is.
  • Retraining and redeployment: if other departments face redundancies, this can help properly redistribute your workforce. If no other alternative vacancies are available for the employee on maternity leave, providing training for a role will create an alternative vacancy.
  • Voluntary career break: you can discuss an extended time period after a maternity leave without maternity pay during a consultation.
  • Voluntary redundancy: an employee on maternity leave can offer to take voluntary redundancy. This saves employers time and effort with the decision process.

When considering alternative roles, you must provide suitable roles for employees on maternity leave.

Suitable vacancies must:

  • Consist of an appropriate amount of projected work.
  • Have acceptable capacity and place of employment.
  • Have acceptable terms and condition changes with their employment contract.

Voluntary redundancy on maternity leave

While deciding who to make redundant, a potential alternative to redundancy is voluntary redundancy. Taking voluntary redundancy whilst on maternity leave is an option that employees on maternity leave may wish to choose.

Employees may choose to do so if they’re considering taking more time off to spend with their newborn. Throughout the process of consulting with employees, this alternative is worth discussing if considering any employees on maternity leave for redundancy.

Voluntary redundancy while on maternity leave still pays statutory redundancy pay. However, if you end their maternity leave due to voluntary redundancy, you need to pay both a redundancy and maternity pay lump sum.

If you consider a pregnant employee for redundancy, you must consider their validity for redundancy with caution. This is because they can qualify for statutory maternity pay.

If you make an employee redundant before going on maternity leave, you will need to pay the statutory maternity pay. The applies to the time after the beginning of the 15th week before the baby is due. This will not include redundancy payments, they are additional.

Redundancy protection for new parents receives an extension of protection. The protection is that they must be offered an acceptable alternative role if one is available.

This extended protection also includes protection that starts from the date the employee informs her employers that she's pregnant.

The employee doesn’t need to inform the employer in writing, protection is possible to begin following verbal notification. However, having the notification in writing helps both employees and employers understand when protections begin.

These extended protections last for a further six-month period once the employee returns to work.

Get help with redundancy on maternity leave today with BrightHR

No employer enjoys making employees redundant. A business suffers from the loss of talent, which is much harder to swallow when that talent is on maternity leave.

There’s also the chance that making a redundancy without due care can result in hefty fines from employment tribunals. Handling redundancies with employees on maternity leave is even more complicated, which can result in problematic fines.

Some cases have seen high fines, with fines for discrimination being uncapped.

BrightHR is here to help and make the redundancy process smoother. Our specialist HR software makes handling redundancies easier. You can also reach out for HR advice during a redundancy decision process.

Book a free Bright HR demo today, or call us on 0800 470 2432.

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