When an employee is pregnant, they have a legal right to take time off work, often referred to as parental leave. However, redundancy can occur while on parental leave which is where the employer needs to let a staff member go. This could be due to financial issues or trading problems that require staff to be made redundant. They may now need to downsize the business or even close the company in some cases.
When redundancy does occur, employees on parental leave in the UK have certain parental leave redundancy rights that employers need to abide by. There are potential challenges when you are facing redundancy during parental leave UK. There is the risk of the employee being fairly treated when they are away from the workplace. They also fear they will be overlooked for other roles within the company.
In this article, we will discuss the following to help employees understand their legal rights and options:
The legal framework that protects employees
The rights employees have while on parental level in the UK
The employer's obligations to their employees
The steps to take if the employee is unfairly treated
The Law on Redundancy During Parental Leave
Employment Rights Act 1996
The Employment Rights Act 1996 protects those on parental leave. The legislation prohibits unfair dismissal during parental leave if this reason is connected to the leave, whether parental leave, maternity or adoption leave.
Redundancy must be due to unrelated business reasons and must be a genuine reason. Those on parental leave have a right to be involved in the consultancy process and should have access to alternative roles in the company.
Maternity and Parental Leave Regulations 1999
The Maternity and Parental Leave Regulations 1999 provides additional protection with employers required to follow these set regulations. The employer must give employees on maternity or parental leave priority for suitable alternative roles in the event of redundancy.
The employee has the right to other roles that are appropriate within the business or an associated employer. They will be required a new contract and a suitable role must be offered over other employees.
Equality Act 2010
If an employee is selected for redundancy because they are on parental leave, the employer is breaking the legislation in the Equality Act 2010. This is discrimination and is a breach which could lead to further legal action by the employee.
The Equality Act 2010 protects those who are pregnant and face any maternity-related discrimination. They can claim unfair dismissal or pregnancy discrimination if the employee is chosen for redundancy if evidence is shown.
When Redundancy During Parental Leave is Lawful
There are certain genuine redundancy situations where redundancy is lawful for a member of staff on parental leave:
A business may need to close due to financial reasons
The business may need to restructure due to market closures or a new direction
The role is no longer needed due to a reduction in the workforce
The redundancy of the employee must not be related to the employee's parental leave otherwise this will be classed as unfair dismissal.
Fair Selection Process
It is lawful to make an employee on parental leave redundant as long as you have conducted a fair redundancy selection process. This process should consider all employees using justifiable criteria that should be transparent.
The employees in the process should be assessed fairly and the reasons should be shared with all those employees during the consultancy process. The employee's leave status should not be a consideration. This could be classed as discrimination if it’s taken into account.
Employee Rights During the Redundancy Process
1. Right to Consultation
Those employees on maternity leave have parental leave employment rights UK. They have the right to consultation just like other employees. Consultation is a process which occurs that gives employees the chance to find out the fair reasons why the redundancy is happening.
It also gives the chance for employees to discuss any reasonable alternatives to redundancy. During the redundancy process, the employer must communicate with the employee during their leave. They have a right to be informed about any updates even when they are on leave.
They should be given a fair chance to discuss any opportunities during the redundancy process. Failure to consult could be seen as discrimination and the employee could take further action. During consultancy, it’s important to discuss any contractual rights and any redundancy and notice pay.
2. Right to Suitable Alternative Employment
The employees on parental leave must be offered suitable alternative employment before other employees if their role is being made redundant. By law, the employee should be offered an alternative job role under a new contract. Regulations protect those employees who are on leave so that they are not unfairly disadvantaged.
The job is classed as suitable depending on the following factors as discussed on GOV.UK:
How similar the job is to the current role
The terms of the job role
The skills of the employee
The pay, hours and location of the role
There must be reasonable reasons for turning this alternative role down. If the role is refused without good reason, the employee could lose their right to redundancy pay.
Steps to Take If You Are Made Redundant While on Parental Leave
1. Understand Your Rights
Employees need to understand their rights if they are made redundant while on parental leave. They can look at legislation such as the Employment Rights Act 1996 and the Maternity and Parental Leave Regulations 1999.
It’s also worth looking at their contract to have clarity of your rights. If you think the redundancy is not lawful, you can look at taking further legal action for pregnancy discrimination.
2. Request Written Justification
You are within your rights to ask the employer for written justification for the redundancy. They should explain the selection process and be transparent about the reasons. You should consult with the employer and they can help provide clarity in a written format.
They should also explain whether alternative roles were considered. With written justification, this can provide any evidence of potential unfair treatment.
3. Consider a Grievance or Appeal
If the employee does believe that the redundancy is unfair or discriminatory, they could take the next step of raising a formal grievance with their employer. The employer should follow the grievance procedure with a meeting allowing the employee to have their say.
An employee could also take the action of appealing a redundancy decision through the company’s internal procedures. This will lead to an outcome of either a rejection of the appeal or a reinstatement of the employee.
4. Seek Legal Advice
If a solution has not been found by dealing with the employer internally, the employee may wish to take further legal advice. The employee should consult with a solicitor who will explore the options you have to challenge the redundancy. They may feel you have a claim for discrimination or unfair dismissal.
You could take the case to an employment tribunal to claim compensation for the redundancy.
Potential Remedies for Unfair Redundancy
If unfair redundancy is found to have occurred, here are some of the potential remedies:
The employee who has been found of unfair redundancy could be entitled to reinstatement. In this case, the employer would have to rehire in the previous role. There is also the possibility of re-engagement which would see them offered a different role at the company.
If the employee can not be reinstated, they will be awarded compensation from the employer. This will be calculated depending on loss of earnings, statutory redundancy pay and also any additional compensation. If discrimination is proven, a timeframe will be given to pay the amount.
Best Practices for Employers Managing Redundancy During Parental Leave
Ensure Fair Selection
Employers who need to make redundancies should make sure that the employee on parental leave is chosen fairly. They should not be disadvantaged in the redundancy selection process with their absence not being considered. All employees should be fairly assessed during the process.
Offer Suitable Alternative Employment:
Employers must fairly offer suitable alternative roles to employees. It’s important to offer this before considering other candidates. This should be a suitable role that would suit their skillset and be similar to their previous role. It should offer similar hours and locations.
This is a legal obligation that protects employees against claims of unfair treatment.
Maintain Open Communication:
You should maintain open communication with employees on parental leave. You must keep them informed about any potential redundancies.
Being transparent and open is important for employees. The employee on parental leave needs to legally be involved in the consultation process.
Legal and Regulatory Considerations
UK Employment Law Compliance
An employer must comply with UK employment law when making employees on parental leave redundant. There is protection for employment on parent leave with laws under the Employment Rights Act 1996 and the Maternity and Parental Leave Regulations 1999.
Equality Act 2010 Compliance:
Employers also need to make sure any decisions they make about redundancy are not influenced by an employee’s parental leave status. The Equality Act 2010 requires employers to legally comply with this about redundancies.
FAQs
Can I be made redundant while on maternity or paternity leave?
An employee can only be made redundant on maternity or parenting leave if the reason is lawful. If the business is going under, they are having a restructure or there is a need to reduce the workforce. These reasons need to be clarified to the employee. If they are made redundant due to their leave, this is an unfair dismissal and further legal action should be taken.
What are my rights if I’m selected for redundancy during parental leave?
You have the right to consultation if you have been selected with the process explained in transparent detail. You have the right to suitable alternative employment. You can take further action internally or through the court if you don’t agree with their reasoning.
Do I have to be offered an alternative job if I’m made redundant on parental leave?
An employer must legally offer an alternative job to an employee. This must fit certain criteria such as the employee’s suitability.
How can I challenge an unfair redundancy decision?
You can challenge the decision by raising a grievance with the employer. You can also appeal the decision. If you still feel it’s an unfair redundancy decision, you can take legal action.
What compensation can I claim for unfair redundancy during parental leave?
If it’s found you have been unfairly dismissed with redundancy, you can claim loss of earnings and redundancy pay compensation. You could also try for additional compensation depending on the hurt involved in the redundancy.
Conclusion
The laws have particular regulations regarding redundancy and paternity leave UK. The law protects those who are on parental leave from being made redundant without a lawful reason. Employees are protected by the law and have a right to consultation with their employer. This can help them have clarity over the redundancy and the opportunity to discuss alternative roles which they have priority for.
With the laws in place, they have protection from discrimination and unfair dismissal. If you are made redundant during parental leave, you should legally discuss your rights under the UK. Lawhive’s employment law can help to give you personalised advice on redundancy during parental leave. They will look at your redundancy and can help you to take further action if you have been made redundant unfairly or due to discrimination.