Q: I currently have an employee on maternity leave whose position has been declared redundant. What are my responsibilities in this situation?

A: It is legally permissible to make an employee redundant while she is on maternity leave if her role is genuinely redundant. However, this process comes with increased legal protections for employees, necessitating a careful approach.

If an employee claims— and an employment tribunal concurs— that her redundancy is linked to her pregnancy, childbirth, or maternity leave, it could be deemed automatically unfair and discriminatory. Furthermore, irrespective of connection to these events, she might still pursue a claim for unfair dismissal if she has at least two years of service.

Thus, it is essential to present a strong and legitimate business rationale for the redundancy that is unrelated to the employee’s maternity leave. Reasons could include the closure of the business, relocation, or a reduction in workforce needs.

A solid business case is especially vital if the employee is the sole individual in a specific role, as this can raise concerns that the redundancy is targeted. It should be thoroughly documented to serve as evidence in case of legal challenges.

It is crucial to follow a fair and reasonable process before arriving at a decision. Employees on maternity leave must not be overlooked during consultation efforts. All employees, regardless of their leave status, should be properly engaged to facilitate meaningful consultation and information exchange.

If the employee is one of several performing the same duties and there is a need to decrease the number of roles (for instance, reducing five operatives to three), the selection process must not discriminate against her due to her maternity leave. Careful thought must be given to the criteria used for selection to avoid discrimination. For example, pregnancy-related sickness absence should not negatively impact her score. Nevertheless, she should not be excluded from the selection process; she must be evaluated alongside her peers, and if she scores lower for valid reasons, establishing a legal claim will be challenging.

A significant aspect of the additional protections for employees on maternity leave is their entitlement to priority consideration for suitable alternative positions. Since legal changes in April 2024, this safeguard also extends to pregnant employees and those within 18 months post-childbirth. If a suitable position becomes available, the employee has priority, even if someone else might be considered more qualified for the role.

This applies to instances where roles are eliminated and subsequently replaced with new ones. If a new position is appropriate, the protected employee should have preferential treatment. Failure to provide this could result in dismissal being classified as automatically unfair and discriminatory.

For employees with two or more years of service, they are entitled to receive statutory redundancy pay based on their regular earnings, along with additional redundancy pay if your organization offers such a program. They should also receive notice or compensation in lieu of notice in accordance with the terms of their contract (minimum statutory notice periods may apply based on tenure). If eligible for statutory maternity pay, the employee is entitled to the full amount, just as if she had remained employed. Any outstanding holiday pay must also be provided.

Sarah Garth is an expert in employment law at Keystone Law.