An explanation of the special rules which apply to redundancy during or after pregnancy or family leave.
Redundancy situations can arise in almost any workplace, large or small. If a business is closing or needs fewer employees for certain tasks, it may need to reduce staff. As long as the redundancy is genuine and a fair process is followed (including offering alternative roles where possible), any dismissals are likely to be fair.
Employers typically strive to treat all employees equally during redundancies to ensure fairness. However, there’s an exception for employees who are pregnant, on family leave, or have recently returned from leave. In these cases, the law requires these employees to be treated more favourably when it comes to alternative employment. This is one of the few situations where positive discrimination is legal.
What are the rules?
Employees affected by redundancy during the protected period (see the table below) must be offered first refusal of any available suitable alternative vacancy available within the employer’s business or that of any associated employer.
Pregnancy | Protected from the date that the employee informs the employer of her pregnancy for the full period of pregnancy. |
Maternity Leave | Protected for the period of 18 months from the first day of the estimated week of childbirth. The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer of the actual date of birth in writing during their maternity leave period. |
Adoption Leave | Protected for the period of 18 months from the date of placement for adoption. |
Shared Parental Leave | Protected for the period of 18 months from birth/placement for adoption provided that the employee has taken a period of at least 6 consecutive weeks of Shared Parental Leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above.
Protected during the period of absence on shared parental leave only (and not the period following it) if fewer than 6 consecutive weeks of leave are taken. |
If an employer fails to follow these rules, resulting in the dismissal of a protected employee, then that dismissal will be automatically unfair.
What are the limits?
Employers need to understand both the protection provided to certain employees in redundancy situations and its limits. For instance, employers are not required to create a new role for an employee just because they are pregnant or on family leave.
If redundancy involves reducing roles, a protected employee doesn’t automatically keep their job. A fair selection process must still take place. If the process shows that a protected employee is at risk, they must be offered first refusal of any suitable alternative vacancies. However, they are not entitled to stay in their original role.
This was illustrated in the recent case of Hunter v Carnival Plc. The employee, on maternity leave, was made redundant after her role was one of five removed during a restructuring of 21 team leader posts. She claimed unfair dismissal and maternity discrimination, arguing she should have been kept in one of the 16 remaining roles. The Employment Appeal Tribunal held that the entitlement to a suitable alternative role only applies if a new vacancy is available. The remaining team leader roles weren’t new vacancies but existing positions, so they didn’t meet the criteria for suitable alternative vacancies under the law.
Advice for Employers
- Keep records: Track employees’ leave dates to identify who qualifies for redundancy protection. This is especially important for short periods of leave, as can occur with shared parental leave.
- Offer suitable roles automatically: If a protected employee’s role is made redundant as part of a restructure which creates a new suitable role, this should be offered automatically without requiring a competitive interview (Sefton v Wainwright).
- Handle overlapping claims fairly: If multiple protected employees qualify for a limited number of similarly suitable alternative roles, ask for their preferences first. If conflicts remain, ensure you have a clear and fair system for selecting who is offered the roles.
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If you are a member of the HR Inner Circle, we have a wealth of template documents, letters and checklists for use during a redundancy procedure. You can access them here: https://members.hrinnercircle.co.uk/the-vault/templates-and-checklists