Redundancy During Pregnancy or Maternity Leave

Facing redundancy during pregnancy or maternity leave is one of the most stressful situations an employee can encounter. For many women, the worry is not just about income, but also about maternity pay, leave entitlements, and whether the decision is fair.

UK law provides firm redundancy protection for employees who are pregnant or on maternity leave. This article explains your employment rights, including protection from redundancy, statutory maternity pay, and the remedies available if you feel you have been made redundant because of pregnancy or maternity.

Key Takeaways

• Redundancy during pregnancy or maternity leave is heavily regulated under UK law.
• Employees cannot be selected for redundancy because of pregnancy or maternity status.
• A suitable alternative role must be offered first to those on maternity leave if available.
• Statutory redundancy pay, maternity pay, notice pay, and holiday pay remain due if conditions are met.
• Failure to consult or unfair selection criteria can amount to discrimination and automatically unfair dismissal.
• Employees can pursue unfair dismissal or discrimination claims, but strict tribunal deadlines apply.

What Redundancy Means in UK Law

In everyday conversation, redundancy may be used loosely to describe losing a job. Legally, however, redundancy has a very particular meaning.

Redundancy under UK employment law refers to a type of dismissal that arises when an employer has to cut down the number of staff. The legal basis comes from the Employment Rights Act 1996, which sets out when a dismissal will count as a genuine redundancy situation. This applies where:

• The employer closes or intends to close the business.
• The workplace closes or relocates.
• There is a reduced need for employees to carry out work of a particular kind.

Legal Protections During Pregnancy and Maternity Leave

UK employment law recognises that women who are pregnant or on maternity leave are at particular risk of unfair treatment. For this reason, there are overlapping layers of legal protection.

• The Equality Act 2010 makes it unlawful to subject a worker to detrimental treatment because she is pregnant, on maternity leave, or has recently returned from it. This extends to dismissal, selection for redundancy, or being denied opportunities within the workplace.
• The Employment Rights Act 1996 sets out the basic framework of redundancy rights, including requirements for consultation, notice, and statutory redundancy pay where applicable.

Importantly, dismissals connected to pregnancy, childbirth, or maternity leave are classed as “automatically unfair”. This means that an employer cannot justify them, regardless of circumstances.

In practice, an employee on maternity leave must be treated as though she were not absent. She remains entitled to information, consideration for roles, and fair treatment in any restructuring process.

The “Suitable Alternative Role” Requirement

Where an employer is making staff redundant, and there is a suitable alternative role available, most employees must apply or be considered on equal terms. However, employees on maternity leave have a significant advantage: they are entitled to be offered a suitable alternative role over other candidates.

For example:

• If two employees are facing redundancy and a vacancy arises that both could do, the person on maternity leave must be offered it first, provided it is suitable.
• “Suitable” typically means the alternative post is appropriate in terms of pay, status, location, and skill level.

This rule is not a discretionary benefit; it is a statutory duty placed on employers. Failing to comply can make the dismissal unfair and open the employer to discrimination claims.

The Redundancy Selection Process: Risks and Requirements

When redundancies are genuinely necessary, employers often use a selection process to decide who will remain and who will go. This usually involves scoring employees against criteria such as performance, skills, attendance, or disciplinary records.

For employees on maternity leave, however, certain safeguards apply:

• Absence cannot count against them: An employer must not include time away due to maternity leave as a factor in attendance or performance scoring.
• Performance ratings must be adjusted fairly: If an employee has not been present to meet certain targets, she cannot be penalised for failing to do so during her leave.
• Consultation obligations remain: Even while on maternity leave, the employee must be kept informed and consulted. Employers cannot exclude her from meetings or decisions on the basis that she is away.

These principles aim to ensure redundancy decisions reflect the business need, not the employee’s protected status. Any deviation from transparent, objective criteria can leave a redundancy decision open to legal challenge.

Statutory Redundancy Pay and Maternity Pay

Employees who are made redundant during pregnancy or maternity leave are entitled to the same redundancy payments as any other employee, provided that the statutory conditions are satisfied. These entitlements operate in parallel with maternity pay rights.

Statutory Redundancy Pay

An employee with a minimum of two years’ continuous employment is entitled to statutory redundancy pay. The calculation is based on three factors:

• Age at the time of redundancy.
• Length of continuous service.
• Weekly gross pay, capped at the statutory maximum.

The legal calculation for redundancy pay is based on age and length of service:

• Employees receive half a week’s pay for every full year worked before turning 22.
• A full week’s pay is given for each complete year of service from ages 22 to 40.
• One and a half weeks’ pay is awarded for every full year worked once aged 41 or older.

These rules apply in the same way to employees who are pregnant, on maternity leave, or returning from it.

Statutory Maternity Pay

Employees who qualify for statutory maternity pay (SMP) retain this entitlement even if they are made redundant after the 15th week before the expected week of childbirth. Once eligibility has been established, SMP continues for up to 39 weeks, regardless of whether the employment relationship ends.

Where an employee does not meet the conditions for SMP, they may instead be eligible for Maternity Allowance, which is paid through Jobcentre Plus.

Notice Pay and Accrued Holiday

In addition to redundancy pay and maternity pay, an employee made redundant while on maternity leave is entitled to:

• Notice pay, either for the statutory notice period or a longer contractual period where applicable.
• Accrued annual leave, including leave accrued during maternity absence, which must be paid in full on termination of employment.

A failure to provide statutory redundancy pay, SMP, notice pay or holiday pay constitutes a breach of statutory duty and gives rise to potential claims before the Employment Tribunal. Employers should ensure that all financial entitlements are correctly calculated and paid to avoid liability.

Common Grounds for Unfair Redundancy

Several common failings by employers can render the dismissal unfair and discriminatory. These include:

Selection Based on Pregnancy or Maternity

Redundancy selection criteria must be objective and non-discriminatory. Using pregnancy-related absence, maternity leave, or reduced performance due to maternity as part of the redundancy scoring system amounts to pregnancy and maternity discrimination under the Equality Act 2010.

Failure to Offer a Suitable Alternative Vacancy

Where a suitable vacancy exists, the law requires that it must be offered in priority to employees who are pregnant or on maternity leave. An employer who fails to comply with this duty risks a finding of automatically unfair dismissal, regardless of whether the wider redundancy process was conducted fairly.

Exclusion from Consultation

Employees on maternity leave must be fully consulted during the redundancy process. Excluding them from meetings or failing to provide documentation is unlawful and may form grounds for a successful claim.

Sham Redundancy Situations

If the role continues to exist, or if new staff are hired immediately after the redundancy, the process will not be considered genuine. In such cases, dismissal is likely to be deemed unfair.

Remedies and Legal Options If You’re Made Redundant During Pregnancy or Maternity Leave

Employees who have been unfairly selected for redundancy during pregnancy or maternity leave have several legal remedies.

Unfair Dismissal Claims

A dismissal will be automatically unfair if it is connected to pregnancy, maternity leave, or the employer’s failure to offer a suitable alternative vacancy. Claims must usually be submitted to the Employment Tribunal within three months less one day of the effective date of termination.

Discrimination Claims

Where redundancy selection is based on pregnancy or maternity, this amounts to unlawful discrimination under the Equality Act 2010. Compensation in discrimination cases is uncapped and can include damages for loss of earnings and injury to feelings.

Financial Remedies

In addition to redundancy pay, maternity pay, and notice pay, successful claims may result in an award for future loss of earnings and pension rights, as well as reimbursement of legal costs in certain circumstances.

Steps if Facing Redundancy While Pregnant or on Maternity Leave

Employees concerned about redundancy during pregnancy or maternity leave should take immediate steps to safeguard their rights.

1. Keep Written Records: Maintain copies of all correspondence, redundancy selection criteria, and consultation notes. These will be vital evidence if a claim becomes necessary.
2. Request Written Confirmation: Ask the employer to set out in writing the reasons for selection and details of any alternative vacancies considered.
3. Check Financial Entitlements: Ensure that statutory redundancy pay, statutory maternity pay, notice pay, and accrued annual leave have been correctly calculated.
4. Seek Professional Advice: Contact the Acas helpline for free guidance and consider obtaining independent legal advice from employment law specialists.
5. Act Within Deadlines: Remember that Employment Tribunal claims must be lodged within strict time limits. Delay may result in the loss of the right to pursue a claim.

Let Our Experts Help You

If you believe redundancy has affected you during pregnancy or maternity leave, our redundancy lawyers at Gulbenkian Andonian Solicitors can help you understand your rights and evaluate your next steps.

Our employment lawyer team is experienced in navigating the complexities of UK employment law, including the protections that apply in sensitive circumstances like these. Contact us today for clear, expert advice to ensure your situation is handled fairly and that your legal rights are fully protected at every stage.