Last Updated on 21.6.23 by Amanda Isherwood
We are now well into the swing of 2023, but unfortunately our employment team have had a great deal of enquiries about redundancies which of course is never a good way for employers and employees to start the year.
In particular our team have received a great deal of enquiries from women who have been placed at risk of redundancy whilst on maternity leave. In light of these recent queries we thought it would be useful to set out some FAQ’s on this issue:
Can I be made redundant whilst on maternity leave?
Yes, contrary to popular belief you can be made redundant whilst on maternity leave if it is a genuine redundancy situation, and a fair procedure has been followed. You cannot be made redundant because you are on maternity leave, this would be unlawful.
Do I have any enhanced protection from redundancy during maternity leave?
Yes, under regulation 10 of the Maternity and Parental Leave Regulations 1999 if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave under her existing contract, she is entitled to be offered alternative employment where there is a “suitable available vacancy.”
A woman on maternity leave would not be required to interview for the role in competition with her colleagues also at risk of redundancy. She should be offered the role in priority to her colleagues, even if she was not the best candidate for the position.
It should however be noted that regulation 10 only kicks in once a woman on maternity leave has actually been selected for redundancy. A woman on maternity leave is not entitled to be taken out of the selection pool for redundancy altogether. If an employer did this, it would risk claims by its male employees for sex discrimination.
What amounts to a “suitable available vacancy” under regulation 10?
In accordance with regulation 10, a suitable available vacancy would be a role which involves carrying out work which is “both suitable in relation to the employee and appropriate for her to do in the circumstances” and the terms and conditions of her employment “are not substantially less favourable to her than if she had continued to be employed under the previous contract.”
Whether an alternative role is suitable or not can be difficult to determine, and in our team’s experience, is the subject of many disputes between employers and employees. Unless a role is effectively the equivalent of the employee’s current role, employers have the difficult task of making an assessment on suitability on a case-by-case basis with reference to an employee’s individual circumstances.
Do I have to accept a suitable available vacancy?
Whether you accept the new position is a personal decision, however if you turn down the offer of a suitable alternative vacancy then your dismissal is likely to be deemed fair and you may forfeit your right to a redundancy payment. If you have received/ are receiving enhanced contractual maternity pay, then not returning to work under this new contract may mean you have to pay this money back to your employer.
What if no suitable alternative role exists?
In this situation you would have a right to be considered for any vacancies within the business, alongside other employees. You should not be disadvantaged as a result of being away from the business, and any pregnancy-related absences should be discounted. Employers should also be careful not to factor in any downturn in the performance which was related to pregnancy.
What if I am put at risk of redundancy when I return to work from maternity leave?
As the law currently stands, the enhanced protection afforded to women under regulation 10 is limited to the duration of maternity leave. In our team’s experience, a great deal of women express concern that their employer has waited until their maternity leave has ended before putting them at risk of redundancy for this very reason.
The government has recognised this concern and has announced it will extend the protection under regulation 10 from the point a woman informs her employer she is pregnant until 6 months after she returns to work.
Will I be paid for my time during the redundancy consultation period?
You may wish to ask your employer if you can take “keeping in touch days” (“KIT Days”) in order to engage in the consultation process. Employees can work up to 10 KIT Days during their maternity leave without bringing their leave or pay to an end. These days should be paid at your normal rate of pay. However, there is no automatic right to take KIT Days and therefore they must be agreed in advance with your employer.
What am I entitled to if I am being made redundant during maternity leave?
If sadly you are made redundant during maternity leave, you will be entitled to receive a statutory redundancy payment if you have been employed by your employer for two years or more, however, some organisations offer enhanced redundancy packages.
In addition to this, you will receive notice from your employer that your employment is ending, however your pay during this period will depend on the notice provisions in your contract of employment. If you are entitled to just statutory minimum notice, then you should receive full pay during this period. However, if your contract provides for notice at least 1 week more than the statutory minimum notice period, then your employer only has to pay you Statutory Maternity Pay (“SMP”) during your notice period, and if this has been exhausted no pay.
You will also be entitled to accrued but untaken holiday pay (at your normal pay rate) calculated up to and including your last day of employment.
If you have been receiving SMP or Maternity Allowance (“MA”) whilst on maternity leave, you will be entitled to any remaining payments in full, even if you are made redundant before your maternity leave ends.