I Wonder How to Handle Redundancy Procedures for an Employee on Maternity Leave

Redundancy can be especially sensitive when it affects someone during a “protected period.” These protected periods include:

• During pregnancy
• During statutory maternity leave
• Up to 18 months after the birth (an additional protected period after maternity leave ends)

Employees on maternity leave have special legal protections. If an employer gets the redundancy process wrong, it can lead to claims of automatic unfair dismissal or pregnancy and maternity discrimination.

Understanding the Legal Framework

Employees on maternity leave are strongly protected by law. The main laws covering this are:

• The Employment Rights Act 1996
• The Equality Act 2010
• The Maternity and Parental Leave Regulations 1999

Under this framework, an employee must not be selected for redundancy because they are pregnant, have given birth, or are on maternity leave. If they are, the dismissal will usually be considered automatically unfair.

Also, treating someone unfairly because of maternity leave may count as unlawful discrimination under the Equality Act 2010. This can lead to employment tribunal claims and serious financial and reputational consequences for the employer.

That said, redundancy can still be lawful during maternity leave if:

• The redundancy is genuine, and
• The employee is treated the same as others

Employers should carefully record how decisions are made, using clear and objective evidence, and follow fair and consistent procedures.

What Constitutes a Genuine Redundancy?

Before starting the redundancy process, an employer must ensure there is a genuine business reason. A genuine redundancy may happen when:

• A business closes
• There is less need for a certain role or type of work
• The business is reorganised or restructured
• The workplace moves location

The reason must be real, clear, and based on business needs—not because of an individual employee.

Employers should have evidence to support this, such as:

• Business restructuring plans
• Financial pressures
• Changes in how the business operates

Good record-keeping is important in case the decision is challenged later.

Extra care is needed if the employee is on maternity leave. If it looks like redundancy is being used as an excuse to dismiss them because of their leave, this could lead to claims of unfair dismissal and discrimination. Clear evidence helps show the redundancy is genuine.

The Consultation Process

Employers must carry out a proper consultation with all affected employees, including those on maternity leave, before making a final decision.

This may involve agreeing on how to stay in touch, for example, via email, phone, video call, or face-to-face meetings.

Employees on maternity leave must not be disadvantaged. They should receive the same information and have the same chance to respond as everyone else.

Consultation should include:

• Reasons for the proposed redundancy
• How employees are being selected
• Any alternative roles available

If 20 or more redundancies are planned within 90 days at one workplace, a formal collective consultation is required.

All steps, meetings, and decisions should be clearly recorded.

Selection for Redundancy

Employers must use fair and objective criteria when selecting employees for redundancy. This is especially important for employees on maternity leave.

Selection should be based on factors like:

• Skills
• Qualifications
• Experience
• Attendance (but not absences related to pregnancy, maternity, or disability)
• Disciplinary record

Decisions should be based on evidence, not personal opinions.

It is important to avoid discrimination. Selection must not be influenced by protected characteristics under the Equality Act 2010, which includes maternity.

For example, using attendance or availability could be unfair if it penalises someone for maternity-related absence.

Employers should clearly document how decisions are made. Using scoring systems or checklists can help ensure fairness and reduce bias.

Priority for Alternative Roles

Employees on maternity leave have special protections regarding alternative jobs. If a suitable alternative role is available, they must be given priority and offered the position before any other employees who are at risk of redundancy.

A “suitable” role is one that is similar to: Pay, status, location or working conditions.

Employers should carefully consider whether the role is appropriate for the employee’s skills and experience.

Notice Period and Redundancy Pay

Employees must be given a statutory notice period when made redundant, unless their contract provides a longer notice period, in which case the contractual notice period applies.

Statutory notice ranges from at least 1 week to up to 12 weeks, depending on length of service.

Employees with at least 2 years’ continuous service may also be entitled to statutory redundancy pay. This is based on: Age, length of service and weekly pay (subject to a legal maximum).

Key Risks and Best Practice

Handling redundancy during maternity leave can carry significant legal risks if not done properly. Any unfair treatment linked to maternity leave can lead to legal claims.

Good practice includes:

• Using fair and objective selection criteria
• Carrying out proper consultation
• Giving priority to suitable alternative roles
• Keeping clear records of all decisions and communications
• Getting legal advice if unsure

Further Advice

If you have questions about redundancy, maternity leave, or any other employment matter, our Peace of Mind Team can help. Our Document Audit Team can also support you with workplace policies. You can call us on  023 8071 7717 or email employment@warnergoodman.co.uk.

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