Are Employees on Maternity Leave Protected From Redundancy?

There is a common misconception that you cannot make an employee redundant while they are on maternity leave.

Employees on maternity leave do have important additional protection during a redundancy process, but that does not mean their role can never be made redundant. Redundancy while on maternity leave is possible where there is a genuine redundancy situation and a fair process is followed.

Where the additional protection becomes particularly important is if there is a suitable alternative vacancy available. Employees within the redundancy protected period have priority for suitable alternative vacancies and, where the legal requirements are met, the role must be offered to them rather than simply allowing them to compete for it alongside other employees. So, being protected from redundancy does not mean being completely protected from being made redundant.

Can You Make Someone Redundant While They Are on Maternity Leave?

Yes. A genuine redundancy situation can arise while an employee is on maternity leave. Perhaps a particular area of the business is closing, the organisation needs fewer employees doing a particular type of work or there is a restructure that means certain roles are no longer required.

Being on maternity leave does not mean the employee's role has to be preserved if there is a genuine business reason for the redundancy. However, the employee must not be selected for redundancy because they are on maternity leave or for a reason connected to their pregnancy or maternity.

For example, it would clearly be problematic to decide that an employee should be selected because they have been away from the business for several months or because somebody else has been covering their role successfully. The redundancy situation needs to be genuine and the employee needs to be treated fairly throughout the process.

Can You Make Someone Redundant While They Are Pregnant?

Yes. Pregnancy does not prevent an employee from being included in a genuine redundancy process. An employer might announce a restructure while an employee is pregnant, or an employee might tell their employer that they are pregnant after a redundancy process has already started. In either situation, the redundancy process can continue.

The employee must not be selected for redundancy because they are pregnant or for a reason connected to their pregnancy. The employer also needs to take account of the additional redundancy protection that applies during pregnancy. This is important because the enhanced protection does not begin when maternity leave starts. It generally begins when the employee tells their employer that they are pregnant.

If a pregnant employee is selected for redundancy and there is a suitable alternative vacancy available, their priority rights may therefore apply even though they have not yet started maternity leave.

What Protection Does an Employee on Maternity Leave Actually Have?

Employees on maternity leave have additional protection if they are selected for redundancy and there is a suitable alternative vacancy available.

Normally, an employer considering redundancies should look for suitable alternative employment for affected employees. However, employees within the redundancy protected period have priority for suitable alternative vacancies.

This means they should not simply be invited to apply for a suitable role alongside other employees who are at risk of redundancy. If the vacancy meets the requirements for suitable alternative employment, it must be offered to the protected employee.

This can sometimes feel unusual to managers because another employee may appear to be stronger or more experienced. But this particular protection deliberately gives certain employees priority for suitable alternative vacancies during a redundancy process.

Does Maternity Leave Mean an Employee Cannot Be Selected for Redundancy?

No. The additional protection does not automatically remove an employee from a redundancy selection pool.

Imagine a business has 10 employees carrying out the same role but now only needs six. One of those employees is on maternity leave. The employee on maternity leave does not automatically take one of the six remaining positions simply because they have redundancy protection. They can still go through a fair redundancy selection process alongside the other affected employees.

If they are fairly selected for redundancy, the employer must then consider whether there are any suitable alternative vacancies that should be offered to them as a priority.

This distinction is important. The protection relates to suitable alternative vacancies. It does not necessarily mean an employee on maternity leave automatically gets one of the existing roles that remain following a reduction in headcount.

How Long Does Maternity Redundancy Protection Last?

The protection is no longer limited to the period when somebody is actually on maternity leave. For pregnancy and maternity, the redundancy protected period generally starts when the employee tells their employer that they are pregnant and continues until 18 months after the baby's date of birth.

If the employee does not tell their employer the exact date of birth, the protected period will usually end 18 months from the expected week of childbirth. This means an employee can have additional redundancy protection while pregnant, throughout maternity leave and for a period after returning to work.

For example, if an employee returns from maternity leave when their baby is 12 months old, the additional redundancy protection can continue for approximately another six months. This is important for managers because somebody does not lose their redundancy protection simply because they have walked back through the office door after maternity leave.

Does an Employee on Maternity Leave Automatically Get an Available Job?

Not every vacancy will qualify. The role needs to be a suitable alternative vacancy. Whether a role is suitable will depend on factors such as the work involved, the employee's skills and abilities, the terms being offered, pay, status, hours and location.

If there is a suitable alternative vacancy, however, an employee within the protected period has priority for it over employees who do not have the same redundancy protection. The employee should actually be offered the role. It is not enough to send them a vacancy list and tell them they are welcome to apply.

This is one of the most important differences for employers to understand when managing redundancy involving an employee who is pregnant, on maternity leave or within the protected period after maternity leave.

What If Another Employee Is Better Qualified for the Alternative Role?

This is where the rules can sometimes surprise managers. If the role is a suitable alternative vacancy for an employee with redundancy protection, they have priority over employees without that protection even if another employee may appear to be more suitable. That means an employer cannot necessarily decide to interview everyone at risk and simply give the vacancy to whoever scores highest.

There can also be situations where more than one employee with redundancy protection is suitable for the same vacancy. If there are not enough suitable vacancies for everyone who has priority, the employer will need to decide fairly who is most suitable. This might involve considering factors such as skills, experience and job knowledge.

Can You Consult With Someone While They Are on Maternity Leave?

Yes, and excluding them from the redundancy process because they are on maternity leave can create its own problems. An employee on maternity leave should still be kept appropriately informed about significant changes affecting their employment. If their role is at risk of redundancy, they should be included in the consultation process and given a proper opportunity to understand the proposals, ask questions and put forward alternatives.

Managers can sometimes become nervous about contacting somebody during maternity leave because they do not want to disturb them. But avoiding contact altogether can leave the employee excluded from important decisions that directly affect their job.

Discuss how they would prefer to be contacted and make reasonable arrangements for them to participate in consultation. Being on maternity leave should not mean finding out what happened after everyone else.

Can Pregnancy or Maternity Leave Affect Redundancy Selection?

Pregnancy and maternity should not be used against an employee when deciding who is selected for redundancy. This is particularly important when looking at selection criteria.

For example, an employer needs to be careful where attendance forms part of redundancy scoring. Pregnancy-related absence and maternity leave should not simply count against an employee in the same way as ordinary absence.

The same applies to performance information. If an employee has been away on maternity leave, managers should think carefully about what information they are using and whether the comparison with other employees is fair. The fact that somebody has been absent from the workplace because they have exercised their maternity rights should not put them at a disadvantage in the redundancy process.

What If the Employee Has Only Just Returned From Maternity Leave?

Do not assume that their additional protection has ended. The current rules mean maternity redundancy protection can continue after the employee returns to work, up to 18 months after the birth of the child.

So if somebody returns to work after nine or twelve months of maternity leave and a restructure happens shortly afterwards, they may still be within the redundancy protected period.

They can still be included in a genuine redundancy process and can still ultimately be made redundant. But if they are selected for redundancy and a suitable alternative vacancy exists, their priority rights may still apply.

Does Redundancy Protection Guarantee an Employee a Job?

No. This is probably the most important misconception to clear up. The protection does not require an employer to invent a role that does not exist. It does not mean a genuine redundancy situation has to be abandoned and it does not guarantee that the employee will remain employed regardless of the circumstances.

If an employee is fairly selected for redundancy and there are no suitable alternative vacancies available, their employment can still potentially end by reason of redundancy.

What the protection does is give them important additional rights where suitable alternative employment is available. That is very different from saying, “You cannot make somebody redundant because they are on maternity leave.”

What Should Employers Do if Maternity Leave and Redundancy Overlap?

Start by dealing with the redundancy situation in the same way you would for the rest of the workforce. Establish the genuine business reason, identify the roles affected, consult properly and use a fair selection process where selection is required.

Alongside that, identify whether any affected employee is within a redundancy protected period. Do not assume this only means employees currently on maternity leave. Someone who is pregnant or who has already returned to work may also be protected.

If a protected employee is selected for redundancy, look carefully across the organisation, and any associated employers where relevant, for suitable alternative vacancies.

Most importantly, do not fall into either of the two common traps. The first is assuming an employee on maternity leave cannot be made redundant at all. The second is treating them exactly the same as everyone else and overlooking the additional rights they have. They can be part of a genuine redundancy process, but the additional protection needs to be built into how that process is managed.

Need HR Support?

If you're planning a redundancy or restructure and an employee is pregnant, on maternity leave or has recently returned to work, BloomHR can help.

We provide practical HR advice to help small businesses manage redundancy processes fairly and understand when additional pregnancy and maternity protections apply. Contact us for more information.