Women that are made redundant during maternity leave
Have you been made redundant whilst on maternity leave? We can help you, here is an overview of the law:
An employer should take care that the redundancy selection criteria it uses does not discriminate against employees who are pregnant or on maternity leave. For example, an employee’s absences connected with pregnancy and maternity should not be included when scoring an employee on attendance.
Where an employee on ordinary or additional maternity leave is potentially redundant, she is entitled to be offered any suitable available vacancy with the employer, its successor or any associated employer in priority to other potentially redundant employees. The offer must be of a new contract taking effect immediately on the ending of her previous contract and be such that:
- The work is suitable and appropriate for her to do.
- The capacity, place of employment and other terms and conditions are not substantially less favourable than under the previous contract.
(Regulation 10(3), Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312) (MPL Regulations 1999).)
The new contract offered to the employee must be such that:
- The work to be done is both suitable and appropriate for her to do in the circumstances (regulation 10(3)(a), MPL Regulations).
- The capacity and place in which she is to be employed, and the other terms andconditions of her employment, are not substantially less favourable to her than if she had continued to be employed in her old job (regulation 10(3)(b), MPL Regulations).
For example: A company decides to combine their head office and regional teams and create a “centre of excellence” in Manchester. A new organisation structure is drawn up which involves a reduction in headcount. The company intends that all employees should have the opportunity to apply for posts in the new structure. Those unsuccessful at interview will be made redundant. At the time this is implemented, one of the existing members of the team is on ordinary maternity leave. As such, she has a priority right to be offered a suitable available vacancy in the new organisation without having to go through the competitive interview process. (Paragraph 19.19, EHRC Code.)
If a woman is dismissed by reason of redundancy in breach of regulation 10 of the MPL Regulations, her dismissal will be automatically unfair (Regulation 20, MPL Regulations 1999). Failure to comply with regulation 10 could also constitute pregnancy and maternity discrimination under section 18 of the EqA 2010. However, this is not an automatic outcome; for section 18 purposes, the tribunal would still need to ask the reason why the employer failed to offer a suitable alternative vacancy (Sefton BC v Wainwright  ICR 652).
If you need any advice relating to this, then please contact us on 020 8579 1345.