Question: can my employer make me redundant while I’m on maternity leave?
Chris Hadrill, a specialist employment solicitor at Redmans, answers the question:
“Can can my employer make me redundant while I’m on maternity leave?”
I know that this is the kind of open-ended answer that you expect a lawyer to give, but the answer to to this question depends upon the factual circumstances.
If you give birth then you may take a period of Ordinary Maternity Leave (“OML”, which lasts for up to six months from the start of the maternity leave) and you may then take a period of Additional Maternity Leave (“AML”, which lasts for up to a further six months from the end of the period of OML).
If you only take OML then you are entitled to return to the same job in which you were employed prior to your absence. Your terms of employment upon your return to work must be the same as, or not less favourable than, they would have been were you not absent from work unless a redundancy situation has arisen.
If you take AML then you are entitled to return to the same job in which you were employed prior to your absence, unless it is not reasonably practicable for you to do so. A restructure of your employer’s business may mean that it is not reasonably practicable for you to return to your job but, equally, whether this is the case will depend on the particular factual circumstances of the redundancy.
ACAS recommends that, should your employer be considering making you redundant during a period of maternity leave, you should do the following:
- Consult with your Trade Union (if you have one) and discuss what is happening with any other employees, including those who are on maternity leave or on leave due to a pregnancy-related illness – are your colleagues also being treated the same way as you?
- Ask for your employer’s reasons as to why the redundancy is necessary and ask for any documentation they have to support the case for redundancy
- Ask for your employer’s criteria for selecting people for redundancy, and ask who will be making the decisions about who should and should not be made redundant
- Make sure that your employer consults properly with you on the redundancy
- Make sure that your employer does a proper search for any suitable alternative work in the business
- If you are made redundant and are unhappy with this, make sure to appeal your redundancy to the appropriate person
If you believe that your dismissal is because of (or principally because of ) your pregnancy or maternity leave then any dismissal would be automatically unfair. If you believe that your dismissal is connected with your maternity leave then your dismissal will be automatically unfair if the only (or principal) reasons for your dismissal is redundancy.
If you are dismissed for the reason of redundancy during your maternity leave then you may be entitled to receive redundancy pay – you should, at a minimum, receive statutory redundancy pay if you have two years’ continuous service with your employer but, equally, you may be entitled to enhanced redundancy pay (if your employer operates such a scheme).
To read more of ACAS’s guidance please click here