There is often confusion over how the extra protection for employees on maternity leave works during redundancy exercises. The most frequently asked questions are answered below, taken from the CIPD employment law helpline:
Is it illegal to make employees on maternity leave redundant?
No. But choosing a woman for redundancy because she is on maternity leave is unfair. For example, if a woman who has had nobody covering her while on maternity leave is made redundant, there is a risk of illegality as it fulfills the ‘but for’ criteria: that she wouldn’t have been made redundant ‘but for the fact’ that she was on maternity leave. However, a woman on maternity leave can be made redundant fairly as long as it is for a genuine reason and consultation a fair selection process have taken place. Employers must find a way of consulting fairly with absent employees, and ensure that selection is unbiased to avoid discrimination claims.
What protection is there for those on maternity leave against redundancy?
If the post of a woman on maternity leave is made redundant then any suitable available post must be offered to her. This new post must be appropriate work for her, and on terms that are not excessively less favourable than she had in her previous position. This obligation is extended to associated employers and to new employers if the business is transferred.
Is this different for women not yet on maternity leave?
The right to be offered another post applies if a woman’s leave starts during the redundancy notice period.
If one of several employees at risk of redundancy is on maternity leave, can an interview be held for the suitable vacancy?
Not unless it has already been offered to and rejected by the woman on maternity leave, since she has the right to be offered the vacancy without competition even if there are other suitably qualified, or even better qualified, candidates.
How can employees’ performance be assessed fairly for redundancy selection when they’re on maternity leave?
It is difficult to do this. Whatever method is used, employees should not have a disadvantage for being on maternity leave. Employers need to be able to show that assessment is fair and reasonable, so evidence of performance before maternity leave and projected performance will be helpful. Factors that would have affected the employee’s performance had they been working during the assessment period should also be taken into account.
Should the end of maternity leave be waited for before redundancy is confirmed?
Redundancy can be implemented during leave if the employer is able to show that it was necessary. It isn’t necessary for consultation to be extended until the employee returns to work. Although not legally required, employers can postpone a redundancy dismissal until the end of maternity leave so that they can assess whether or not a redundancy situation is still in existence by then.
Should a woman on maternity leave be avoided if only a few redundancies from a group of similar roles need to be made?
What if there is a suitable post but the employee, who is on maternity leave, isn’t returning until after 52 weeks?
A vacancy with a start date before the end of a woman’s planned maternity leave can be offered. The employee can then choose to end her maternity leave early if she wants to, so long as she gives notice. It may also be possible for the vacancy to remain open with a temporary worker filling the post.
What happens to statutory maternity pay (SMP) when there’s a redundancy?
SMP must be paid to an employee for 39 weeks, so long as she qualifies, even if she is made redundant before or part of the way through maternity leave. If the employee is only receiving SMP then this usually should be topped up to the equivalent of full pay during the notice period.