Redundancy while on or shortly after maternity leave

Released 11th March, 2010|19,363 Views

If you are being made redundant there are a number of things you should consider. Firstly, you should look at whether it is a genuine redundancy situation.  Redundancy can happen when your place of work closes or moves, either temporarily or permanently, the type of work you do will no longer be done at your place of work, or fewer employees are needed to do the type of work that you do.  If you have been made redundant but the person covering your maternity leave has not, this is not likely to be a genuine redundancy and you should seek legal advice straight away. Secondly, you should look at whether your employer’s selection criteria are fair. If you are selected for redundancy because of pregnancy or maternity leave you can claim unfair dismissal and sex discrimination.

Employers must give employees as much warning as they can of impending redundancy, and must consult with employees.  Failure to consult with an employee because she is on maternity leave may be sex discrimination.

Even if the redundancy is genuine, fair and you have been consulted, if you have at least two years’ service with your employer you will be entitled to a redundancy payment. You will also be entitled to contractual rights such as holidays which have built up until the end of the notice period, and your entitlement to SMP will continue. You will also in most cases be entitled to notice pay, though note that usually your employer can offset your maternity pay against the notice pay.

If you are to be made redundant during maternity leave regulation 10 of the Maternity and Parental Leave etc Regulations 1999 says that you must be offered any suitable alternative vacancies. You do not have to apply or be interviewed for any suitable alternative vacancy but should be offered it in priority to your colleagues. If your employer insists that you must apply, seek advice. If a suitable alternative vacancy exists and you are not offered it you may have a claim for automatic unfair dismissal and sex discrimination. This protection is only available to women on maternity leave.  As soon as you return to work you are no longer covered.  However, selection criteria must still be fair and time off because of pregnancy or maternity leave must not be taken into account. When this protection begins will be a question of fact, so seek advice as soon as possible.

Suitability is looked at from the employee’s point of view, so if the job offered is on less favourable terms and conditions, including the location and hours of work, or is very different from what you were doing before, it is not likely to be regarded as suitable. If your employer offers you a suitable alternative vacancy and you turn it down unreasonably you will lose your right to a redundancy payment.