Posted on 14.7.20 by Danielle Ayres
As a result of the number of enquiries we have received from pregnant women, who are worried about the security of their role, have been placed at risk or have sadly lost their job recently, we thought it would be helpful to set out below an individual’s “rights” in this area.
Contrary to popular belief, you can be made redundant when you are pregnant if there is a genuine redundancy situation and there is no suitable alternative employment or other options to retain you in the business. You do not unfortunately have enhanced rights or additional protection (as you do whilst on maternity leave).
You cannot however be made redundant because you are pregnant, have had a pregnancy-related illness 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.
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, pregnancy-related illness 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 criteria and the effects of a pregnancy-related illness/fatigue are not taken into consideration.
Your employer should also look into suitable alternatives and you should be considered alongside other suitable candidates, with your pregnancy not being factored into the same ie even if you are not able to take the job up immediately or until the end of your maternity leave.
What am I entitled to if I am being made redundant?
You will be entitled to salary up to and including your final day of employment. If you are on furlough leave and have agreed to your pay being reduced as a result, this may be at the lower amount.
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.
Regardless of whether you have worked for your employer for over 2 years or not, you will be entitled to notice. Your employer may ask you to work your notice period, to serve the same whilst on furlough leave (albeit you should receive full pay for this with your employer “topping up” what the Government will pay towards your salary at this time) or you may be paid in lieu.
Statutory entitlement provides that if you have worked with your employer for more than 1 month but less than 2 years, you are given a week’s notice, for 2 years or more, it’s a week for each full year you a=have worked for, up to a maximum of 12 weeks. Your contractual notice may be more than this, so it is always worth checking your contract if you are going through a redundancy process.
Statutory Maternity Pay (“SMP”) / Maternity Allowance (“MA”)
You may still be entitled to be paid your SMP in full, even if you are made redundant before your maternity leave is due to start.
To qualify for SMP you must meet certain criteria, which are outlined below:
a. You must be an employee and have worked for the same employer for at least 26 weeks into the qualifying week, which is the 15th week before the week your baby is due; and
b. You must have been employed in all or part of your qualifying week; and
c. You must have earnt at least £120 on average in the eight weeks before the end of the qualifying week. If you usually earn an average of £120 per week but because you are not working or are furloughed, you may still be eligible for SMP.
If you meet the criteria above and you are made redundant in or after your qualifying week, you will be entitled to receive SMP for 39 weeks. This can be paid to you as a lump-sum payment, or every week/month as it would had you remained employed. Likewise, if you are already on maternity leave, and qualified for SMP, you will be paid ay remaining SMP even though your maternity leave will be coming to an end.
You will not get SMP if your employment ends before your qualifying week. However, in that situation and if you do not meet the above qualifying criteria, you may still be entitled to Maternity Allowance.
Contractual Maternity Pay
You are usually only entitled too enhanced/contractual maternity pay for as long as you remain an employee, therefore, if your employment comes to an end prior too you going on maternity leave or 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.