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Can we make a woman on maternity leave redundant?

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Redundancies are unfortunately a necessary measure for some businesses, and it is important that if this is the case for your business that you follow the right procedure to reduce the risk of Tribunal claims.  If you have employees on maternity leave, there are additional conditions that must be applied; our Employment team discuss these today and explain the next steps if you are considering redundancies.

A female employee on maternity leave can be made redundant; however due to the special conditions which apply it is not always a simple process.

For those employees who have over two years service, you are required to follow a fair process and have a fair reason for any dismissal. Redundancy is a potentially fair reason for dismissing an employee but you must have followed a fair procedure before making any employee redundant. This normally involves deciding who is in the redundancy pool using a fair selection procedure.  You should pool all relevant employees and should not exclude women on maternity leave.

The selection process must not disadvantage employees on maternity leave. For example, if you use absence as one of the selection criteria to score employees, you should discount any absence that relates to pregnancy or maternity. Employees on maternity leave are not entitled to have their scores “inflated” and if you automatically favour women on maternity leave, you may be exposed to a claim of sex discrimination from your male employees.

When deciding on the pool of employees who are at risk you  may have to extend the consultation period to ensure that the employee on maternity leave can properly take part in the process. One of the special conditions which apply to those on maternity leave and redundancy is that they have a priority to be offered any suitable alternative employment that you have available over every other candidate who is not on maternity or other relevant leave. If a job is suitable, you have to offer it to the employee, not just invite her to apply for it. To decide if a job is suitable it must be no worse than her previous job in relation to location, terms, conditions and status.  If in doubt, it may be better to assume that the job is suitable and leave it to her to decide whether to accept it.

These rights also apply to employees (of both sexes) taking shared parental leave or adoption leave.

Although a pregnant woman who has not yet started maternity leave has the right not to suffer any detriment arising from her pregnancy, this does not mean that she has special protection in a redundancy situation.

Redundancies will be a difficult process for all concerned as you will be looking to conduct a fair procedure for your employees, while they will be worried for the future of their roles.  Our Employment team can offer you the right advice tailored for your business, not only in the legalities but also the practicalities of redundancies, for example making the announcements to your employees.

For more information on how we can support you and your business, contact the Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.