Here at ViewHR, we have covered different aspects of the topic of redundancy in a number of our previous blogs, including exploring alternatives to redundancy, redundancy selection criteria, and redundancy consultation.

However, did you know that if one of the people who may be at risk of redundancy is on maternity leave, there are specific legal protections that apply?

Terminating an individual’s employment as a result of them being pregnant or on maternity leave, is very likely to constitute direct discrimination under the Equality Act 2010.  However, this does not mean that in a genuine redundancy situation, a pregnant woman or a woman on maternity leave cannot be made redundant. A genuine redundancy situation is when:

• the employer doesn’t need the employee to do your job any more;
• the workplace is closing;
• the employer is going out of business or there is a reduced demand for its services.

Even in these situations, there are particular protections that apply to those on maternity leave, as well as their colleagues on adoption and shared parental leave.  Employees on such leave have a right to be offered any suitable alternative vacancy within the employer, in priority to other potentially redundant employees. This applies without a requirement to complete a selection criteria process, and even if another employee is considered more suitable.

If a suitable alternative is not available, however, it is important to remember that maternity leave counts as continuous service, and therefore should be included in any calculations regarding entitlement to Statutory Redundancy Pay and minimum notice periods.

When an employer is planning to consult with employees on potential redundancies, it can be a busy and stressful time. In this context, it is important to remember that you must ensure that your communication plan takes into account employees on maternity leave so that they are not left out and receive the same opportunities for consultation as their colleagues.

This protection applies within the “protected period”. The protected period is as follows:

• For employees who are entitled to statutory maternity leave, the protected period lasts from the beginning of the employee’s pregnancy until the end of their additional maternity leave entitlement, or when they return to work;
• For employees who are not entitled to statutory maternity leave, the protection is from the beginning of pregnancy until two weeks after the end of the pregnancy (or four weeks for factory workers).

A criticism that can be made of the current legislation, however, is that it does not provide sufficient protection, as the protected period ends as soon as the employee return to work. As such, the Pregnancy and Maternity (Redundancy Protection) Bill has been proposed in the House of Commons, under which the protected period would be extended until six months after the end of pregnancy or maternity leave. Here at ViewHR we work hard to keep abreast of the latest developments in employment law and will keep our clients posted with developments.

If you have a query about managing a redundancy process, or supporting an employee on maternity, paternity, adoption, or shared parental leave, the ViewHR team can help; please contact us today for an initial discussion.