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.