We are often asked, can I be made redundant while on maternity leave? If you are placed at risk of redundancy whilst on maternity leave, it is natural to be worried and even feel targeted. You are naturally wondering if you can legally be made redundant whilst on maternity leave. The answer is yes, but only if the process is fair, carried out properly, and you do have extra legal protection, which we explain below.
In this article, we explain your rights if you are facing redundancy on maternity leave, the legal protections that apply, and what you can do if you think your redundancy is unfair or discriminatory.
Can You Be Made Redundant on Maternity Leave?
Yes, you can be made redundant while on maternity leave, but redundancy must be genuine and your employer must follow a fair and lawful process in line with important UK Legislation.
Your employer cannot simply use maternity leave as an excuse to dismiss you. They must show:
- The redundancy is part of a genuine business need, such as a closure or reduction in the need for employees to do your type of work.
- You have not been selected for redundancy because you are on maternity leave or because you are pregnant.
- They have followed a fair selection process.
If maternity leave or pregnancy was a factor in selecting you for redundancy, this would be an automatically unfair dismissal under section 99 of the Employment Rights Act 1996 and would also be pregnancy or maternity discrimination under the Equality Act 2010.
Please note, in order to claim unfair dismissal, you must have been employed for at least 2 years, but with automatic unfair dismissal or discrimination claims, there is no minimum qualifying service (so the 2-year service rule is not applicable).
Special Protection: The Right to Suitable Alternative Employment
Under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, if your role is genuinely redundant, and a suitable alternative vacancy exists, you must be offered that suitable alternative vacancy ahead of other employees who are also at risk of redundancy.
Historically, this was a special protection that only applied while you are on maternity leave (although see below, the position has recently changed). It gives you priority for suitable alternative vacancies over other employees, even those with more seniority or longer service.
If your employer fails to offer you a suitable alternative vacancy that exists, your dismissal will be automatically unfair under the law.
Updated Redundancy Protection for Pregnancy and Maternity Leave
As of 6 April 2024, the law has changed to extend redundancy protection beyond maternity leave to cover both pregnancy and a period after returning from maternity leave.
Under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, employees now have the right to be offered a suitable alternative vacancy, with priority over others, if a redundancy situation arises:
- From the date they notify their employer of pregnancy
- Throughout maternity leave
- For a period of 18 months after the child’s date of birth (or expected week of childbirth if the actual date was not notified)
The same extended protection applies to employees on adoption leave and, in certain circumstances, shared parental leave.
If an employer fails to offer a suitable alternative vacancy during this protected period when one exists, the dismissal will be automatically unfair under section 99 of the Employment Rights Act 1996 and may also amount to pregnancy or maternity discrimination under the Equality Act 2010.
This means that if you are pregnant, on maternity leave, or have returned from maternity leave within the last 18 months, you have enhanced legal protection against redundancy.
We strongly recommend seeking legal advice if you are facing redundancy at any stage during this protected period, as claims for automatically unfair dismissal or discrimination can result in uncapped compensation.
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What Does “Suitable Alternative Work” Mean?
A suitable alternative vacancy must:
- Be no worse than your original role in terms of pay, benefits, status, location, and other key terms.
- Be appropriate for you given your skills and circumstances.
If no suitable alternative role exists, your employer can proceed with redundancy, provided they have followed a fair process. As mentioned above, you are only eligible for a redundancy payment and to claim unfair dismissal, if you have been continuously employed for at least 2-years.
What If There Is No Suitable Role?
If no suitable alternative role exists, and the redundancy is genuine, your employer can lawfully make you redundant, provided they have followed a fair process and complied with their obligations under the Employment Rights Act 1996 and the Maternity and Parental Leave etc. Regulations 1999.
If you are made redundant in these circumstances, you may still be entitled to:
- Statutory redundancy pay, if you qualify
- Notice pay
- Pay for any accrued but untaken holiday
- Statutory maternity pay (which continues even after redundancy)
What If I Am Selected Because I Am on Maternity Leave?
If you believe that your maternity leave was a factor in your selection for redundancy, you may have a claim for:
- Automatically unfair dismissal under section 99 of the Employment Rights Act 1996.
- Pregnancy and maternity discrimination under the Equality Act 2010.
This is often more difficult to prove, and must be given careful consideration.
Warning signs may include:
- Your role being restructured around your absence.
- Only you or other women on maternity leave being selected for redundancy.
- Being excluded from consultation processes.
- Being overlooked for suitable alternative roles.
Can I Be Made Redundant While Pregnant?
Yes, you can be made redundant while pregnant, but the same protections apply. The redundancy must be genuine and not related to your pregnancy, and the selection process must be fair.
If you are selected for redundancy because you are pregnant, or because you plan to take maternity leave, this would be automatically unfair dismissal and pregnancy discrimination.
What Should I Do If I Am Facing Redundancy While on Maternity Leave?
If you have been told you are at risk of redundancy while on maternity leave, you should:
- Stay employed, take advice and act quickly.
- Ask for the business case for redundancy and the selection criteria in writing.
- Request a copy of any consultation documents.
- Check if there are any suitable alternative vacancies.
- Keep written records of all communications, meetings, and decisions.
- See number 1 above (it is worth repeating).
Strict time limits apply. Most claims for unfair dismissal or discrimination must be brought within three months less one day of the date of dismissal or the act of discrimination.
Example Tribunal Case
Example Case: Pregnancy Discrimination and Redundancy
In a recent employment tribunal case, an employee who was eight months pregnant was made redundant with only two weeks’ notice. She applied for other suitable vacancies within the company but was not interviewed or offered any alternative roles.
The tribunal found that the employer had failed to follow a fair process and had discriminated against her because of her pregnancy. She was awarded compensation for pregnancy discrimination and automatically unfair dismissal.
This case highlights the importance of employers complying with their legal obligations during redundancy, particularly when employees are pregnant or on maternity leave.
How Toner Legal Can Help
At Toner Legal, we help employees facing redundancy during pregnancy and maternity leave. We advise on:
- Unfair dismissal claims.
- Pregnancy and maternity discrimination
- Negotiating settlement agreements
- Securing compensation and protecting your career
If you are facing redundancy while on maternity leave, contact us today. We will help you understand your rights and protect your position.
Get In Touch
If you need our help, please call us on 0207 118 9218 or complete a Free Online Enquiry and we will be in touch for a free and no obligation discussion.
Frequently Asked Questions
Can I be made redundant while on maternity leave?
Yes, but your employer must follow strict legal rules. Redundancy must be genuine and unrelated to your maternity leave. Under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, you have the right to be offered any suitable alternative vacancy ahead of other employees if one exists. If your employer fails to offer you a suitable alternative role, your dismissal will be automatically unfair.
Has the law changed to extend redundancy protection?
Yes. Since 6 April 2024, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 has extended redundancy protection to cover:
- From the date you notify your employer of pregnancy.
- During maternity leave.
- For 18 months after the date of birth.
You must be offered any suitable alternative vacancy that exists during this entire protected period, before it is offered to other employees.
Does redundancy protection apply after returning from maternity leave?
Yes. You are protected for 18 months from the date of birth (or expected week of childbirth if you did not notify the employer of the actual birth date). During this time, if a redundancy situation arises and a suitable alternative vacancy exists, your employer must offer it to you with priority.
Can I be made redundant if no suitable alternative role exists?
Yes. If no suitable alternative vacancy exists, and redundancy is genuine, your employer may lawfully make you redundant, provided they follow a fair process. You would still be entitled to redundancy pay (if you qualify), notice pay, accrued holiday pay, and any statutory maternity pay due.
What happens if my employer ignores the redundancy protection?
If your employer fails to offer you a suitable alternative role during your protected period, your dismissal will be automatically unfair under section 99 of the Employment Rights Act 1996. You may also have a claim for pregnancy and maternity discrimination under the Equality Act 2010. Compensation for these claims is uncapped.
How long do I have to bring a claim?
You normally have three months less one day from the date of dismissal or the discriminatory act to bring a claim in the employment tribunal. You must start ACAS Early Conciliation before this deadline.