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23/07/2020

What should you do if your job is redundant and you are pregnant, on maternity, adoption or shared parental leave?

When making redundancies if any of the potentially redundant employees are pregnant or on maternity, adoption or shared parental leave, employers must be careful to avoid discrimination, and the employee may have a priority right to any suitable alternative vacancies in preference to other candidates. However, employers must take care to treat other employees fairly too.

Dismissal

If an employee is dismissed during her maternity leave, the leave will come to an end. If an employee is engaged on a fixed-term contract which expires while she is on maternity leave, then she will be treated as dismissed unless the contract is renewed immediately.

Statutory Maternity Pay (SMP) entitlement and dismissal

If an employee is entitled to SMP at the time she is dismissed, she will continue to receive it for the remainder of the SMP period. This is because SMP is not dependent on remaining an employee. This therefore covers both women on maternity leave and those who have left employment altogether after qualifying for SMP.

Redundancy pay and dismissal

An employee who is made redundant during Ordinary Maternity Leave (OML) or Additional Maternity Leave (AML) is entitled to redundancy pay as if she were not on maternity leave. She may also have a number of other potential claims, including automatic unfair dismissal, ordinary unfair dismissal or pregnancy and maternity discrimination.

Notice pay

Where an employee on maternity leave is made redundant, the dismissal will need to be with full notice. In general, an employee should receive, during her notice period, what she normally receives if she is not under notice.

Dismissal because of pregnancy or maternity

If an employee is dismissed where the only (or principal) reason for her dismissal is related to pregnancy, birth or maternity leave, the dismissal will be automatically unfair.

In the case of pregnancy, in order for an employee to be liable under these provisions, it must have known, or believed, that the employee was pregnant. If the employer only discovers that the employee is pregnant after having decided to dismiss (on other grounds), it is not required to revoke its decision.

It is likely that an unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20 of the MPL Regulations would also amount to unlawful discrimination under section 18 of the Equality Act 2010. Unlawful pregnancy and maternity discrimination might also occur in a redundancy situation if the employer does not consult or adequately consult with the employee because she is on maternity leave.

Selection for redundancy because of pregnancy or maternity

An employee's dismissal will be automatically unfair for the purposes of the Employment Rights Act 1996 where the following conditions are satisfied:

  • The only (or principal) reason for her dismissal is redundancy.
  • The circumstances constituting a redundancy applied equally to one or more employees who had positions similar to that of the dismissed employee.
  • The only (or principal) reason for the employee's selection for redundancy was connected with the fact that the employee took, sought to take or availed herself of the benefits of maternity leave.

Redundancy: suitable alternative vacancy

If a redundancy situation arises during an employee's maternity leave and "it is not practicable by reason of redundancy" for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after her existing contract ends. This includes a vacancy with an associated employer. This gives the employee on maternity leave priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination. If the employer does not comply with this requirement, the employee will have a claim for automatically unfair dismissal.

If your employer does make you redundant and you think it’s unfair, we will be happy to help you. Please call Irina Polyakova on 01484 821344 or send us an e-mail to irinapolyakova@eatonsmith.co.uk.