Q&A: redundancy whilst on maternity leave – is it lawful?

Chris Hadrill, a specialist employment solicitor at Redmans, looks at the issue of whether it is lawful for employees (in the UK) to be made redundant whilst they are on maternity leave

If you’ve been made redundant whilst you are on maternity leave then the question of whether your redundancy is lawful will depend upon how the redundancy has been carried out. Broadly, employees who are on maternity leave have the following rights:

  1. To not be dismissed for a reason connected with the fact that they are taking a period of ordinary or additional maternity leave (section 99 Employment Rights Act 1996, following on from regulation 20(1) and (3) of the Maternity and Parental Leave Regulations (“MPL Regulations”));
  2. The right not to be subjected to unfavourable treatment because they have taken a period of maternity leave (section 18 Equality Act 2010)
  3. 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 the employee under their existing contract then the relevant employee is entitled to be offered a suitable alternative vacancy (to start immediately after her existing contract ends) (Regulation 10 of the MPL Regulations)

These rights are examined below

The right not to be dismissed for a reason connected with the fact that the employee has taken a period of ordinary or additional maternity leave

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. This can often be a difficult claim for an employee to succeed with, as they would have to show that (at the very least) the principal reason for their dismissal was the fact that they had taken maternity leave – in a situation where collective redundancies are being made by an employer the employee would have to show that they had been placed at risk of redundancy because of their maternity leave rather than this simply being a consequence of the collective redundancy exercise.

For examples of redundancy situations which have been automatically unfair see the following cases:

The right not to be subjected to unfavourable treatment because they have taken a period of maternity leave

A dismissal will almost always constitute unfavourable treatment for the purposes of the Equality Act 2010. If an employee is dismissed on maternity leave where the only (or principal) reason for her dismissal is related to her period of maternity leave (and is therefore automatically unfair), then such a dismissal will almost always constitute discrimination under section 18 Equality Act 2010.

The right to be offer a suitable alternative vacancy if an employee (who is on maternity leave) has been selected for redundancy

If an employee who is on maternity leave is selected for redundancy then they are entitled to be offered a suitable alternative vacancy (under Regulation 10 of the MPL Regulations) – in practice this means that their is an obligation for employers to prioritise employees on maternity leave for alternative roles in the organisation which are suitable for them; selecting a female or male employee who is not on maternity leave for a suitable alternative role where an employee on maternity leave should have been ‘slotted in’ as a priority would constitute a breach of Regulation 10 of the MPL Regulations.

For examples of redundancy situations which have constituted a breach of Regulation 10 of the MPL Regulations see the following cases: