What should you do if you are told that you are at risk of being made redundant whilst you are on maternity leave? Can the situation in fact work to your advantage? In this article, Claire Taylor-Evans, Employment Solicitor, discusses your legal rights in respect of redundancy during maternity leave.
Can an employer select a woman who is on maternity leave for redundancy?
The fact that you are pregnant or on maternity leave does not prevent your employer from selecting you as a candidate for redundancy. However, your employer would be acting in a discriminatory manner and unfairly if they selected you purely for this reason, as this would be. Your employer should have a good business reason for the potential redundancy of your position, identify a fair pool for selection, apply objective selection criteria to this pool of employees and follow a fair process to avoid any claims of unfair dismissal or sex discrimination.
Will Statutory Maternity Payments continue if I am made redundant?
If you are made redundant your maternity leave will come to an end. If however, you have qualified for statutory maternity pay, you will continue to receive it for the remainder of the statutory maternity pay period even if you are made redundant. Often an employer may decide to pay this in one lump sum. You would also be entitled to work or be paid for your notice period. If your employer does not wish to do this, they may ask you to serve your notice period on “garden leave” which means that you will not be required to attend work but will still be paid.
Does my employer have to offer me suitable alternative employment?
Employees on maternity leave are in a more advantageous position than other employees if they are put at risk of redundancy during their maternity leave, as they have right of first refusal over any suitable alternative position in preference to any other employee who is similarly affected by the redundancy.
So what is a suitable alternative position?
- The work must be both suitable and appropriate.
- The capacity and place of employment, along with the other terms and conditions of the employment must be no less favourable than if the employee had continued to be employed in her old job.
- The position must be available for the employee to start immediately after her existing contract ends.
If the role is suitable do I have to take it?
As your employer is obliged to offer you a suitable alternative job, you must bear in mind that if you are offered a job that is a suitable alternative and you unreasonably refuse to accept the offer, you will forfeit your right to a redundancy payment.
Actually, I really would like to be made redundant. Can I orchestrate this?
This is a question I am often asked. Many women decide that they do not wish to return to work after maternity leave or they are in two minds because of their financial situation.
Often they would quite like to be considered for a redundancy package, particularly if their employer is offering more than statutory redundancy (currently £430 per year of service). However, many employers will not raise this option with a woman on maternity leave as they are concerned about repercussions.
If you are told that you are at risk of redundancy, and are part of a redundancy pool, you could volunteer to be made redundant.
Your employer may state that they are not looking for any voluntary redundancies, although this is something they really should consider before making compulsory redundancies. Even if you do volunteer, they are not obliged to accept your offer as you may possess certain skills that other candidates in the pool do not have.
If you think that you may be at risk of being made redundant, or you have been told that you are being made redundant and you are either worried about this, or you would like further advice on this subject, please contact Claire Taylor- Evans.
Author: Claire Taylor-Evans, is an Associate at Boyes Turner LLP, dealing with all aspects of employment law. Claire regularly advises on maternity, sex discrimination and unfair dismissal. Claire performs advocacy at employment tribunals and is a regular speaker at seminars, conferences and events, for the CIPD and Business Forums. She has written on employment law for Personnel Today Online and the Financial Times. You can contact her on firstname.lastname@example.org or 0118 9527284, Mob: 07792 908 604