Made Redundant While on Maternity Leave: What the Law Says
Redundancy during maternity leave is not automatically unlawful but it is heavily regulated. Here is what your employer must do and what you can claim when they get it wrong.
schedule 8 min readperson Eugene Pienaar, Solicitor (non-practising)
Redundancy During Maternity Leave Is Not Automatically Unfair -- But It Usually Is
An employer can make a woman redundant during maternity leave if there is a genuine redundancy situation. However, the law imposes additional procedural requirements and protections that apply specifically to employees on maternity leave, and these are so demanding that most redundancies during maternity leave are in practice unfair or discriminatory.
The key protection is the right to be offered a suitable alternative vacancy. If your employer has a redundancy situation and you are on maternity leave, and there is any suitable alternative vacancy in the organisation -- including in associated employers -- you must be offered that vacancy before any other employee at risk of redundancy. You do not need to compete for it. You do not need to be the best candidate. You simply have the right to be offered it first. This right applies even if the role is at a lower grade or different location, provided it is suitable and appropriate.
The Priority Vacancy Right
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The priority vacancy right under regulation 10 of the Maternity and Parental Leave Regulations 1999 is one of the most powerful employment protections available. If your employer had any suitable alternative vacancy and did not offer it to you first before making you redundant, the redundancy is automatically unfair. There is no qualifying period for this claim. Compensation is uncapped.
Suitable means suitable for you -- it takes into account your skills, experience, and the terms and conditions of the role. Your employer cannot dismiss the obligation by arguing the role is slightly different or at a different location if it would genuinely be appropriate for you. The threshold for what counts as suitable is assessed objectively.
Pregnancy and Maternity Discrimination
Separately from the unfair dismissal claim, a redundancy during maternity leave may constitute pregnancy and maternity discrimination under the Equality Act 2010. If the selection for redundancy was connected to the maternity leave -- if being on maternity leave made you more visible, more dispensable, or if any criteria used in the selection process disadvantaged you because of your absence -- that is discrimination. Compensation for discrimination is uncapped and includes injury to feelings.
Attendance records and performance records compiled during periods of pregnancy-related absence must not be used in redundancy selection. If your employer counted your maternity leave absence against you in any scoring matrix, the selection is tainted.
The Timing of the Decision
If your employer decided to make you redundant before your maternity leave began but implemented it during maternity leave without going through the proper process, the protections still apply. If they announced a restructuring while you were on leave and failed to consult you properly, that is a failure. You have the same right to consultation as any other employee at risk of redundancy. Being on maternity leave does not reduce your consultation rights -- in practice it requires the employer to make additional effort to ensure you are properly included.
What to Do
Ask your employer in writing for the selection criteria used, your scores, the scores of employees retained, and the reasons you were selected. You are entitled to this information. Ask whether any suitable alternative vacancies exist or existed at the time of the redundancy decision. Ask to see the full list of vacancies that were considered. Ask why you were not offered any of them.
Keep copies of all correspondence. Note the date you were told about the redundancy, the date of any consultation meetings, and the date your employment ends. Contact ACAS at acas.org.uk immediately -- your time limit is three months less one day from the termination date.
Keeping Your Job
If the redundancy has not yet been implemented, you have the right to challenge the selection and to be offered suitable alternative vacancies. Write to your employer immediately asserting your regulation 10 right to be offered any suitable alternative vacancy. State clearly that you are on maternity leave and that you have the right to priority consideration for any suitable vacancy before other employees at risk. Put this in writing so there is a record. An employer who receives this letter and still proceeds without offering you vacancies faces a very strong claim.
Educational purposes only. This article is not legal advice and does not create a solicitor-client relationship. If your situation requires legal advice, consult a qualified solicitor or visit equaljustice.legal.