Giving priority to employees on maternity leave during redundancy – misconceptions and realities

September 12, 2022

Redundancy can be a tricky process to manage at the best of times – pooling, selection criteria, consultations, whether collective consultation is needed, juggling pools of part timers and full timers, and exploring alternatives. But once you add women on maternity leave into the mix, it adds another dimension, and it can be easy to get it wrong and place the organisation at risk.

It’s true that employees who are on maternity (or indeed other family) leave have some additional protection, but it’s common for employers to either not know that at all, or to either underestimate or overestimate the extent of that protection.

I often hear myths that women on maternity leave can’t be made redundant, or you have to wait until they come back. Neither of those is true – if a redundancy situation is genuine, then it’s genuine – an employer is not expected to artificially create roles that don’t exist, or delay critical business decisions until someone absent on leave is back. If that were true, it could take forever in big teams where someone or other being off is not uncommon.

Those who are on maternity leave do have some additional protection though, and it’s worth being crystal clear on what that is and exactly how it works.

The legislative position

The relevant legislation is The Maternity and Parental Leave etc Regulations 1999, and it’s Regulation 10 you need to be aware of. Summarised, the Regulation states as follows:

Where, during an employee’s maternity leave, it is not practicable by reason of redundancy for her employer to continue to employ her, where there is a suitable available vacancy, the employee is entitled to be offered it. The alternative employment must be work suitable and appropriate for the employee and on no less favourable terms and conditions.

Breaking this down helps understand how and when it applies.

At what point in the process and under what circumstances does the protection apply?

The protection only applies in fairly specific circumstances. For it to apply, the employee’s role must be ending due to redundancy, and this must be taking place during her maternity leave. Therefore, if the redundancy won’t take place until afterwards, or takes place before leave starts, the protection doesn’t apply. (There are plans to amend the timescale to include pregnancy and the period just after return, however at the time of writing, this hasn’t yet happened.)

The protection also doesn’t prevent the redundancy taking place in the first place – it is only triggered once the employee is selected for redundancy. Therefore, you should go through whatever fair selection process you are using, including any employee on family leave, with suitable criteria. If, once you’ve done that, the woman on maternity leave has been selected for redundancy as a result of that fair process, the protection then kicks in, and she would be entitled to be offered alternative work under Regulation 10.

It can be tempting to automatically select someone on family leave to keep their job, “just in case”, either by giving them artificially high scores, or by excluding them from the process altogether. But by doing that you are risking an unfair dismissal claim and/or a sex discrimination claim from someone else, as you are going further than is required.

What is a suitable alternative vacancy?

All three words in that description are relevant here. From back to front, the first point is that the role must be a vacancy. Therefore it must either be a new role, or a role outside the redundancy process elsewhere in the organisation that happens to be currently vacant. Similarly, the word alternative is important. It can’t be the employee’s own current job.

If, for example, you employ eight widget makers and are restructuring and will only employ five, you do not have to automatically offer someone on maternity leave one of those roles. They are not vacancies, neither are they alternative, and, as we saw above, the protection hasn’t yet been triggered anyway.

If, however, a restructuring results in removing someone’s role altogether, and creating new roles instead, those might constitute alternative vacancies. It would be fact-specific as to how different the ‘new’ jobs are.

What about suitable? We are used to the concept of suitable alternatives in the framework of redundancy anyway, and it will be a similar test – is the work suitable for the employee (which doesn’t necessarily mean particularly similar to her current role – she may have alternative skills and experience making her suitable for a completely different role), in the circumstances, which can be construed as meaning her circumstances, and is it on terms and conditions which are not substantially less favourable?

What does “offered” mean?

If the protection is triggered, then the requirement is to offer the employment to the employee on maternity leave. That means you cannot require her to enter into any competitive selection process for the role, to have to apply or be judged against others in terms of suitability. There may be other candidates who are perhaps higher performing, or even more suitable for the role than your maternity leaver, but that doesn’t matter, she must be offered it directly. She also cannot be required to return early from maternity leave in order to take up the offer – another common misconception.

 

It can be seen that whilst employees on maternity leave do have some additional protection, it is quite specific and needs to be applied carefully and accurately, to avoid complaints either from the employee on maternity leave, or from affected colleagues. But by following the specific wording as outlined above, you can ensure both the organisation and employees affected by redundancy are protected at what can be a stressful and traumatic time.

 

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