Posted on 7.8.20
Our last blog on redundancies during pregnancy seemed to be well-received and since then we have had a great deal of enquiries from women, who are worried about the security of their role, have been placed at risk or have sadly lost their job, whilst on maternity leave.
We, therefore, thought it would be helpful to set out some key points and answer some of the questions we are being asked on this issue:
Can I be made redundant whilst on maternity leave?
You cannot be made redundant because you are due to go on / are on maternity leave. If you are, this would be classed as “automatic unfair dismissal” as well as being unlawful discrimination.
Contrary to popular belief however, you can be made redundant when you are on maternity leave if there is a genuine redundancy situation, the correct procedure is followed and any suitable alternative roles have been considered.
Are there any enhanced rights for women on maternity leave, when selected for redundancy?
There are also enhanced protections available for women on maternity leave who are selected for redundancy, when it comes at looking at alternative roles and vacancies that may be available, as an alternative to that person being made redundant.
Regulation 10 of the Maternity and Parental Leave Regulations 1999 states that a woman on maternity leave must be offered a suitable alternative vacancy if one exists over and above any other employees who are selected.
This is without having to apply or be interviewed for the role. This gives women on maternity leave an advantage when it comes to being retained in work and is due to them being out of the workplace and not on an even footing when it comes to competing for roles against others.
The role must include work which is suitable and appropriate for you to do, and not be on substantially less favourable terms to your current role. If you turn down the offer of a suitable alternative vacancy you may forfeit your right to redundancy pay.
If no suitable alternative exists, then you have a right to be considered for any vacancies within the business, alongside other employees, regardless of whether you are able to start the role straight away, or will be returning once your maternity leave ends.
You need to ask questions about the process in order to understand whether the redundancy is for a genuine reason.
You should also look at whether any selection criteria that is being used is placing you at a disadvantage because of your pregnancy and/or maternity leave, for example, if attendance/absence records are a selection criterion any pregnancy-related absences or time off on maternity leave should be discounted.
We also find that some individuals encounter problems when “performance” is one of the criterion and the effects of a pregnancy-related illness/fatigue are not taken into consideration, or the fact that an individual has been out of work for a period of time is not factored in.
Can I be paid for the time I will spend attending meetings and attending interviews 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 attend calls, meetings and to go into work to prepare or attend interviews for other roles within the business.
Employees can work up to 10 KIT Days during their maternity leave without bringing the leave or pay to an end). These should be paid at your normal rate of pay.
It should be noted however that there is no right to take KIT Days, they are optional and therefore must be agreed in advance with your employer.
What am I entitled to if I am being made redundant during maternity leave?
Accrued Holiday Pay
You will be entitled to any untaken, accrued holiday pay up to and including your final day of employment. This should be paid at your normal (full) salary.
If you have been with your employer for two years or more, you are entitled to statutory redundancy pay. You may also receive enhanced redundancy if your employer’s policy provides for this, or if they are offering an enhanced package. The amount you get will depend on your age, your gross weekly pay and your length of service. The Gov.uk website provides a useful calculator to work this out for you:
You will not be entitled to statutory redundancy pay if you have been employed by your employer for less than 2 years. You may, however, be entitled to contractual redundancy pay if provided for by your employer.
This is always a difficult question to answer, given that it is a “quirky” rule that needs to be applied.
Statutory notice is based on complete years of service, as follows:
1 year – under 2 years’ service One week
2 years – 12 years+ One week for every complete year of service
Regardless of whether you have worked for your employer for over 2 years or not, you will be entitled to notice.
Your contractual notice may be more than this, so it is always worth checking your contract of employment if you are going through a redundancy process.
Whether you are paid in full for your notice or receive Statutory Maternity Pay (“SMP”) is dictated by looking at the two periods of the notice above. If your contractual notice obliges your employer to give notice which is at least 1 week more than the statutory minimum notice period, your employer only has to pay you SMP during your notice period. In the event that your entitlement to SMP has already been exhausted, you may receive no pay at all during your contractual notice period.
But if your contractual notice period is at least 1 week less than your statutory notice period then you would get full pay for your notice period, even if your SMP has been exhausted. If you are still receiving SMP at that time this will be included/offset against the amount of any notice pay you receive.
Statutory Maternity Pay (“SMP”) / Maternity Allowance (“MA”)
If you have been receiving SMP or MA whilst on maternity leave, you will be entitled to be paid your remaining SMP / MA in full, even if you are made redundant before your maternity leave ends.
SMP will be paid to you by your employer, even though your employment will come to an end, and can be paid to you as a lump-sum payment or every week/month as it would had you remained employed.
Contractual Maternity Pay
You are usually only entitled to enhanced/contractual maternity pay for as long as you remain an employee, therefore, if your employment comes to an end whilst you are on maternity leave, any entitlement to the same will cease from your final day of employment, unless you agree otherwise with your employer.