There is a common misconception you can’t make someone on maternity leave redundant. While it is possible, you should always exercise caution as it is likely to be risky and should only be used as a last resort.
To begin you must ensure that the redundancy is lawful and genuine under these three qualifying reasons:
- when the business closes down either temporarily or permanently;
- when the business moves and the employee cannot get to the new place of work;
- when fewer employees are required for existing work.
If the redundancy qualifies under any of the above, then you must make sure you follow the correct process.
Under the Equality Act 2010, it is unlawful to disadvantage someone because of their pregnancy and maternity leave and they have protected employment rights regardless of their length of service. This essentially means that their pregnancy or maternity should have no effect on your decision to make the individual redundant and the full redundancy process should be followed. Just because you have managed without someone on maternity leave by distributing their work is also not a valid reason to make them redundant and likely to be classed as unfair dismissal. That said if there is a genuine reason for the redundancy decision that would have been exactly the same if they weren’t pregnant (i.e. their pregnancy or maternity has no bearing on your decision – and you can prove it) you can terminate their employment fairly, as long as you have followed the proper process and are able to prove their maternity or pregnancy has not disadvantaged them if they made a claim.
The redundancy process for these employees includes:
- Ensuring employees on maternity leave are kept up to date with any Company announcements while they are off.
- Consulting with employees on maternity leave who are at risk – redundancy with failure to consult would be classed as unfair dismissal.
- Selecting those employees for redundancy fairly.
- Ensuring their notice period and any accrued holiday are paid.
- Ensure that anyone on maternity has preference for any suitable alternative roles that maybe available.
If there are multiple people to select from, there would need to be a very clear reason why someone on maternity leave was made redundant over an employee who wasn’t.
HR Revolution would highly recommend that you don’t pick someone on maternity leave or pregnant unless there is a very clear reason for doing this. If there are alternative available roles that are suitable then someone on maternity leave should get preference to minimise any risk of unfair dismissal.
It is also worth noting that if an employee is on maternity leave or pregnant and is made redundant after the 15th week before their due date, they will still be entitled to their full 39 weeks SMP.
Always seek advice before making someone who is pregnant or on maternity leave redundant, HR Revolution can guide you seamlessly through the process to ensure you do not put yourself at risk of an unfair dismissal claim!
