Maternity & Redundancy

Facing redundancy is a bewildering experience at the best of times, even more so if you are on maternity leave and may have been out of the workplace for sometime.

The law recognises that women on maternity leave can be particularly vulnerable to redundancy and offers some additional rights by way of protection.

Edinburgh Birth and Baby team member, employment law firm Ergo Law addresses common questions asked by women on maternity leave facing redundancy.

Can I be made redundant during my maternity leave?
The short answer is yes. Contrary to popular belief, you can lawfully be made redundant during your maternity leave provided the redundancy is genuine and your employer follows a fair redundancy process.

If you are selected for redundancy because you are pregnant or on maternity leave, this will count as an automatically unfair dismissal as well as discrimination.

What is a fair redundancy process?
Firstly, your employer must use non-discriminatory selection criteria to decide which employee(s) to make redundant. This could include skills, qualifications and disciplinary record.

If using criteria such as attendance, absence or performance, your employer must discount any absence or performance issues caused by your pregnancy or maternity.

Your employer must also consult with you during your maternity leave about the proposed redundancies, giving you as much warning as possible.

This will involve individual consultations, as well as collective consultations if your employer is making 20 or more employees redundant at the same time.

What should I expect from a redundancy consultation?
Your employer must talk to you about the reasons for the redundancies and the selection criteria that they will be applying.

They should also let you know how your redundancy selection assessment was carried out and allow you to put forward any suggestions you might have for alternatives to redundancy.

Finally, your employer should give you a preferential right to any suitable alternative vacancy that might be available by offering the position to you first before those who are being made redundant but are not on maternity leave or pregnant.

What is suitable alternative employment?
In order to be considered suitable, the vacancy must be no less favourable than your previous job in terms of location, status and terms and conditions.

It is important to note that if you do unreasonably turn down an offer of suitable alternative employment, you will lose your right to a redundancy payment.

Find out more about your financial entitlement in the event of a genuine redundancy by visiting our website .

What about my maternity pay?
If you qualify for Statutory Maternity Pay (SMP) your employer is liable to continue paying this for the remainder of the SMP period even if you are made redundant however any enhanced contractual maternity pay (in excess of SMP) is likely to cease when your employment is terminated.

Contact us for advice.
If you are facing redundancy during maternity leave and your employer has not followed a fair redundancy procedure, or you have reason to believe that this is not a genuine redundancy, you may have a claim for unfair dismissal, automatic unfair dismissal and/or maternity discrimination.

There are strict time limits for bringing these claims in an employment tribunal, so it is important to act quickly.

We are very experienced with advising employees who find themselves in this difficult situation and pride ourselves on our compassionate and straightforward approach.

We would love to speak to you about how we can help, so please do get in touch.

Should you wish to know more about your rights during pregnancy and maternity leave, you may find this read useful.