Maternity leave and redundancy

It is possible for a business to make an employee on maternity leave redundant, but there are several protocols which must be followed.


Grounds for redundancy

When the economy is struggling, redundancies can and will occur.


It may seem easier to let someone go if they are already absent from work. However, it is not lawful to make someone redundant because they are pregnant or on maternity leave. This is classed as automatic unfair dismissal. It may also amount to discrimination.


An employer should first establish a genuine reason for redundancy. They need to show why employment cannot continue, and that it is a necessary to end the role during the employee’s maternity leave.


A fair redundancy procedure should be followed as part of this process.


Meeting with affected staff

The employer must consult with the employee who faces redundancy. If 20 or more employees are to go in a collective redundancy, then the procedure is strictly controlled. It will involve prescribed timings and collective consultation.


If fewer than 20 staff are affected, the employer must consultant individually with each employee, within a reasonable time. The consultation should occur while the proposals are being made, providing adequate information and time for the employee to form their response.


Required information includes:

  • the reason for the redundancy
  • how many people are likely to be affected
  • which employees are at risk
  • the length of the consultation period
  • details of the selection process
  • confirmation of the right of appeal
  • redeployment options.


This information should be given to the employee at a staff meeting, during which they should have the opportunity to ask questions. It is essential the process is adapted for anyone on maternity leave – they must not be left out of consultation because they are absent.


Redundancy selection criteria

Where two people carry out a similar role and one is to be made redundant, the employer must decide fairly who stays and who goes. This is particularly important where one of the employees at risk is away on maternity leave.


The criteria used must be objective and measurable, e.g. by looking at performance and attendance. However, absences related to pregnancy or maternity must not be considered.


Employers must scrutinise who they include in any selection pool. Employees should also be able to question their inclusion in any selection pool. An employee will find it difficult to challenge their inclusion if proper care has been taken by the employer and inclusion of individuals was reasonable.


Staff redeployment due to redundancy

Employees facing redundancy while on maternity or parental leave must be offered suitable alternative work, if this is available. They should be prioritised for positions over other employees, even if they have more experience or are better qualified.


This may be unfavourable to the employer. However, an Employment Appeal Tribunal will only look at whether there was a suitable vacancy. If there was, it should have been offered to the person facing redundancy.


Suitable vacancies for selected staff

It may be hard for an employer to determine whether a vacancy is suitable or not, particularly when the role is not like the employee’s existing position.


The new role should be appropriate and not substantially less favourable than the previous position, in respect of terms, conditions, status and location. The position must be actively offered to the employee; not treated as an ‘invitation to apply’ or enter a selection process.


The employer does not have to offer more than one suitable vacancy, even if more than one is available. However, if a suitable role arises at any time during the maternity leave, and after the existing role has ceased to be available, it must be offered if it is the only suitable role available.


The right to take up a suitable alternative position continues until the end of the maternity leave period, even if the employee returns to work early.


Written statement of reasons


Explain why you are making staff on maternity leave redundant

When an employee is made redundant while pregnant or on maternity leave, she has an automatic right to receive a written statement listing the reasons for the dismissal.


This should be prepared carefully as it could form part of any case before an Employment Appeal Tribunal.

It may contain the following details:

  • An in-depth explanation of the reasons behind the redundancy decision
  • An explanation of the timing of the redundancy
  • Why the redundancy cannot be postponed until after a maternity leave period
  • Details of the procedure that has been followed
  • A list of the steps taken to identify any suitable available positions
  • If no suitable position is available, a statement to this effect
  • If the employee has found a role she believes to be suitable, reasons why the employer did not offer it to her.


For further information, the Equality and Human Rights Commission in partnership with Acas have produced a guide which is publicly available online.


Making employees on maternity leave redundant

The strict protections in place for those going through pregnancy and maternity are designed to prevent discrimination against parents. They also apply to those taking shared parental leave or adoption leave.


The Knowledge section of our website contains articles on employment rights in pregnancy and maternity. They may provide a useful reference for understanding the wider implications of maternity leave for employment.


We also have a repository of information which examines the redundancy process more closely.

While redundancy is an understandable part of doing business, it is important for employers to follow the rules to avoid legal action. This is especially true when making a worker on maternity leave redundant.


Where the correct procedure has not been followed or there has been a breach of the rules, there are strict deadlines for making a claim at a tribunal. The initial claim must be made within three months from the date of dismissal or discrimination. It is therefore important not to delay.

 

If you are going through redundancy while on maternity leave, or you are an employer having to make an employee in this position redundant, you may find reassurance in confirming your legal position before you act.


If that is the case, our experienced team of employment solicitors are perfectly positioned to assist you. Get in touch today for clear, accurate and reliable advice.


A black and white photo of the big ben clock tower

Labour’s First 100 Days in Employment Law: A review of Progress to Date and What Lies ahead in the next 12 – 24 months

By Louise Maynard • October 28, 2024
The Labour Party came into power in 2024 with a promise of substantial reforms aimed at enhancing worker’s rights, improving work-life balance, and addressing inequalities in the workplace.
A woman is sitting in a chair talking to a man.

Supporting Mental Health in the Workplace: A Legal Framework for Employers

By Yeing-Lang Chong • October 10, 2024
Mental health is an increasingly important issue in the workplace, affecting employees’ wellbeing, productivity, and overall satisfaction. As more employees speak up about their struggles, UK employers must ensure they are providing a supportive environment while adhering to legal responsibilities. The legal framework surrounding mental health in the workplace is clear, but understanding how to apply it practically is key to preventing discrimination and promoting a healthy work culture. With World Mental Health Day on 10th October, now is the perfect time for employers to review their obligations and strategies for supporting mental health in the workplace.
An empty office with a desk and chair in front of a window.

Handling Mental Health-Related Absences: Best Practices and Legal Obligations

By Yeing-Lang Chong • October 9, 2024
Handling Mental Health-Related Absences: Best Practices and Legal Obligations Mental health-related absences are a common challenge for employers, as mental health conditions can lead to prolonged or frequent time off work. Understanding how to handle these absences with compassion while fulfilling legal obligations is crucial for maintaining a supportive work environment and avoiding potential legal pitfalls. As we approach World Mental Health Day on 10th October, this article outlines best practices and key legal responsibilities for UK employers when managing mental health-related absences.
A woman is comforting a man who is sitting at a desk with his head in his hands.

Mental Health Discrimination in the Workplace: UK Legal Protections

By Emily Kidd • October 8, 2024
In the UK, mental health discrimination in the workplace is a growing concern as more employees speak up about their struggles with mental health issues. World Mental Health Day, observed on 10th October, provides an opportunity to reflect on the legal protections in place to safeguard employees from discrimination and to promote mental wellbeing in the workplace. This article will explore the legal framework surrounding mental health discrimination, including how the law defines mental health disabilities, employers' responsibilities, and steps businesses can take to prevent discrimination.
A man is sitting in a chair while two women comfort him.

Reasonable Adjustments for Mental Health: A Guide for UK Employers

By Marianne Wright • October 7, 2024
Supporting employees with mental health conditions is not just an ethical responsibility for UK employers; it’s a legal obligation under the Equality Act 2010. As we approach World Mental Health Day on 10th October, it’s crucial for employers to understand what reasonable adjustments are, how they can be applied to mental health, and the steps they should take to comply with UK law while fostering an inclusive and supportive work environment.
A group of people are sitting around a table with their hands on each other.

How the Equality Act Protects Employees with Mental Health Conditions

By Marianne Wright • October 7, 2024
The Equality Act 2010 is a key piece of legislation in the UK that aims to protect employees from discrimination in the workplace. While much of the focus on this Act has been on physical disabilities, mental health conditions are also covered under its provisions. As we approach World Mental Health Day on 10th October, it’s important to understand how the Equality Act protects employees with mental health conditions, and what employers must do to ensure they meet their legal obligations.
A group of people are clapping their hands in an office.

Workplace Stress and the Law: How Employers Can Support Employee Wellbeing

By Marianne Wright • October 7, 2024
In the modern workplace, stress is often considered an inevitable part of the job. However, when stress becomes overwhelming, it can lead to significant mental health issues such as anxiety, depression, and burnout. In the UK, employers have a legal responsibility to manage workplace stress and support employee wellbeing. As we approach World Mental Health Day on 10th October, this article explores the legal framework around workplace stress and provides guidance on how employers can take steps to create a healthier, more supportive work environment.
A man in a wheelchair is sitting at a table with other people.

Expanding the Scope of Indirect Discrimination Claims: Implications for Employers

By Springhouse Solicitors • October 2, 2024
The British Airways Plc v Rollett & Others ruling underscores the importance of focusing on the actual disadvantages caused by workplace policies. Employers are now obliged to be more vigilant in assessing the broader impacts of their decisions, ensuring equity and fairness for all employees, regardless of whether they possess a protected characteristic under the Equality Act 2010. By proactively addressing these considerations, employers can foster a more inclusive work environment and mitigate the risk of indirect discrimination claims.
A woman is sleeping at a desk in front of a laptop computer.

Shift Work, Burnout, and Your Rights: Navigating the Challenges of Healthcare Employment

By Marianne Wright • August 11, 2024
Shift work is a necessity in the healthcare sector, ensuring round-the-clock care. However, long hours, night shifts, and irregular schedules can take a significant toll on healthcare workers' physical and mental health, increasing the risk of burnout. This article outlines your legal rights regarding rest breaks, the impact of shift work, and your employer's obligations to minimise the risks.

Mental Health at Work: Legal Obligations and Best Practices for UK Employers

By Yeing-Lang Chong • August 11, 2024
Mental health conditions are becoming increasingly prevalent in UK workplaces, with far-reaching consequences for employees, businesses, and society as a whole. Employers have a duty of care towards their employees' mental wellbeing, and certain mental health conditions may also be recognised as disabilities under the Equality Act 2010.
More Posts