Can You Be Made Redundant While On Maternity Leave?

emily gordon brown
Emily Gordon BrownLegal Assessment Specialist @ Lawhive
Updated on 28th November 2023

Whilst on maternity leave, you should be able to enjoy the time with your new baby without having to worry about your job security when the time comes for you to return. However, many new mothers do often ask questions surrounding their job security, including 'Can you be made redundant while on maternity leave?'

can-you-be-made-redundant-while-on-maternity-leave

In this guide, we provide insights into redundancy laws and your rights when on maternity leave to help take away any worries, so you can go back to enjoying the baby bubble!

Can you be made redundant on maternity leave?

A person on maternity leave can be made redundant, but employers must ensure a fair and legal redundancy process. They cannot make you redundant just because you are on maternity leave.

It is important to know that employees on maternity leave are afforded legal protections to prevent unfair redundancy. Individuals are protected from redundancy during Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).

On 24th July 2023, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (“Act”) came into force and will be effective around April 2024. This Act gives power to the Government to increase protections from redundancy for pregnant workers and new parents who have recently returned to work.

Pregnant women and those on maternity leave are also protected from discrimination and employment rights by the Equality Act 2010 and the Employment Rights Act 1996.

Put simply, employers must offer suitable alternative employment and employees are entitled to redundancy pay if no other alternative job role is available. However, certain lawful exceptions exist, so it is important to seek legal advice if you aren't sure on your position.

If you are on maternity leave, stay informed, communicate openly with your employers, and seek legal advice if you have any concerns about redundancy.

Overall, the laws aim to safeguard the employment rights of those on maternity leave and mitigate any potential disadvantage during this period.

Maternity leave and employment law

Maternity leave is an important part of employment law, safeguarding the rights of pregnant employees and new mothers. It offers essential provisions for balancing work and the demands of pregnancy and childbirth.

The key components of maternity leave are:

Statutory Maternity Leave: Eligible employees can take up to 52 weeks of maternity leave, divided into 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML).

Statutory Maternity Pay (SMP): Individuals on maternity leave may qualify for SMP, providing financial support during their time away from work.

SMP for eligible employees can be paid for up to 39 weeks, as follows:

  • the first 6 weeks: 90% of their average weekly earnings (AWE) before tax

  • the remaining 33 weeks: £172.48 or 90% of their AWE (whichever is lower)

Tax and National Insurance need to be deducted.

Use the SMP calculator to work out your maternity leave and pay.

Notice Periods: Employers and employees must adhere to specific notice periods when notifying each other about the intention to take maternity leave. This should be stated in the employment contract and policies.

Communication and Consultation: Employers must communicate openly with employees on maternity leave. This includes informing them about significant organisational developments, including potential redundancies. The consultation process is crucial, allowing employees to express their views and explore alternative options.

Flexible Working Arrangements: Maternity leave prompts a reassessment of work-life balance. Returning employees can request flexible arrangements like part-time or remote work to accommodate their new parental responsibilities. 

Protection from Discrimination: Employment law prohibits discrimination on pregnancy or maternity. Employers must treat individuals fairly; any unfavourable treatment due to maternity-related factors is considered unlawful.

Seeking Legal Advice: Understanding maternity leave and employment law is crucial for employers and employees. Seeking legal advice ensures everyone is aware of their rights and enables employers to implement compliant policies.

Navigating maternity leave within employment law creates an equitable and supportive workplace.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, effective around April 2024, addresses the treatment of employees during pregnancy and family leave, ensuring priority for redeployment opportunities in redundancies.

This Act extends current protections to a broader group, including pregnant employees, recent miscarriage sufferers, maternity returners, adoption leave returners, and shared parental leave returners.

Before this Act, protections under the Employment Rights Act 1996 were limited to specific leave periods, with priority ending upon the employee's return to work. The Equality Act 2010 offered protections related to pregnancy and family leave, but had limitations.

The new Act enhances job security during pregnancy and family leave, requiring fair treatment and offering alternative job opportunities before considering redundancies. Employers must comply with guidelines, providing suitable alternative roles.

For employers, compliance involves preventing unfair targeting of protected employees for redundancy, identifying suitable vacancies, and potentially incurring financial implications.

Training for HR staff and managers overseeing redundancy procedures may be necessary. If you are non-compliant, this could lead to claims of unfair dismissal and discrimination.

Does maternity leave count as continuous employment for redundancy pay?

Yes, maternity leave counts as continuous employment for redundancy pay purposes. Employees are still considered employed during maternity leave, and their maternity leave is treated as part of their continuous service with the employer.

Continuous employment is a key factor in determining entitlements to redundancy pay. 

Redundancy pay calculations typically consider the length of continuous service with the employer, including the time spent on maternity leave.

Can an employer make you redundant to avoid paying maternity pay?

No, it is against the law for an employer to make an employee redundant solely to avoid paying maternity pay. Doing so would be considered discriminatory and a breach of employment law and would be considered pregnancy discrimination, which is prohibited under the Equality Act 2010.

Employees on maternity leave are entitled to certain rights and protections, including statutory maternity pay (SMP) or maternity allowance. These rights are designed to support employees during their maternity leave period.

If an employee is made redundant during or shortly after maternity leave, it should be for genuine and non-discriminatory reasons. The employer must follow fair procedures based on business needs, not the employee's maternity status.

If employees believe they were unfairly made redundant during pregnancy or maternity leave, they may have legal grounds for a claim. Seeking advice from employment law professionals or contacting an employment tribunal is recommended.

Employers and employees must be aware of their rights and obligations for fair treatment in the workplace.

Do you qualify for SMP if you’re made redundant?

If an employee is made redundant, they may still qualify for Statutory Maternity Pay (SMP) if they meet certain eligibility criteria.

The key points to consider are:

Qualifying Period: An employee must meet a qualifying period to qualify for SMP. This requires continuous employment with the same employer for at least 26 weeks leading up to the 15th week before the expected week of childbirth.

Notification of Pregnancy: Employees must inform their employer of their pregnancy and their intention to take maternity leave at least 15 weeks before the expected week of childbirth.

Redundancy during Maternity Leave: If an employee is made redundant during maternity leave, they are still entitled to SMP if they meet the qualifying criteria. SMP is calculated based on the employee's average earnings during that period.

Get help with maternity rights and redundancy from our employment solicitors

For advice on maternity employment rights, or if you are thinking of making a claim related to redundancy whilst on maternity leave, get a free case assessment and no-obligation quote from the UK’s best employment solicitors today.

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