It is estimated that over 590,000 individuals employed are pregnant.

In a recent survey conducted by the campaign group ‘Pregnant then Screwed’, 7% of their survey pool confirmed they had lost their job through redundancy, sacking or feeling forced to leave.

If this is scaled up to reflect the employment statistics, this could mean that as many as 41,000 pregnant employees or new mothers are sacked or made redundant every year.

These shocking statistics show that this is a common occurrence and is often when individuals are feeling their most vulnerable and least able to look for alternative employment.

It is, therefore, important to understand the obligations that employers are bound by whilst you are on maternity leave and what rights you have in a redundancy situation. 

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Your contractual rights 

During your maternity leave, with the exception of pay, all of the terms and conditions under your contract of employment are protected.

This means that your length of service is not broken by taking maternity leave.

It also means that you continue to accrue your holidays and will be entitled to all contractual benefits and pay rises.

Some particular types of bonus schemes and incentives are also protected. 

Your role when you return

All employees have the right to return to the same job (or a similar job with no less favourable terms) as the one they had before they went on maternity leave.

If an employer says that a person cannot return to the same job, then this may give rise to a claim for unfair dismissal as well as discrimination. 

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What if there is a redundancy situation? 

A genuine redundancy situation only occurs in three types of situation:

  1. Business closure: the organisation is closing or has already closed.
  2. Workplace closure: the organisation is closing the location that you operate from.
  3. Reduction of the workforce: the organisation is changing the types or number of roles needed to do certain work.

It is unlawful discrimination to be made redundant because you are pregnant or on maternity leave.

Further, where there is a possible redundancy situation, the employer must speak with all ‘at risk’ employees and this includes those who are off work with pregnancy-related sickness or are on maternity leave.

Otherwise, if you are excluded from a consultation that is also discriminatory.

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Selection for redundancy 

Unless the employer is making everyone at a particular site or everyone in a particular role redundant, it will need to use a selection process to decide who will be made redundant.

During this process, employees will be divided into pools and should be scored against a set of objectives and measurable criteria.

These usually include skills, performance, attendance, and disciplinary record. It is unlawful discrimination to use criteria that would disadvantage you because you are pregnant or on maternity leave.

For example, any absence caused by your pregnancy or maternity should be discounted, or if you have missed a performance review cycle because of a pregnancy-related illness or your maternity leave, then your employer should consider using your previous review.

You have the right to know the selection criteria used and how you have been scored.

If you disagree with your scoring, then you have the right to discuss and challenge this during consultation. 

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Alternative roles 

During consultation, the employer must consider ways to avoid a redundancy, including whether there are any alternative roles.

Currently, if you are selected for redundancy while on maternity leave and there is a suitable alternative job available, you have the right to be offered this role before anyone else, even if they are also at risk of redundancy.

However, this is limited only to those who are identified and confirmed as redundant during the period of statutory leave and does not apply if you have returned from maternity leave.

However, new law was brought in 2023 to extend the period of this protection.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides for Regulations to be made to extend the current right to be offered suitable alternative vacancies in a redundancy situation to pregnant employees, employees who have recently suffered a miscarriage and employees who have returned from maternity leave (as well as those who have returned from adoption leave or shared parental leave).

The Regulations (the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024) are currently in draft format but are expected to come into force on 6 April 2024.

If brought into force as drafted, the right to be offered a suitable alternative vacancy in a redundancy situation will apply during a new ‘protected period’ which starts on the date when the employee notifies their employer of their pregnancy and ends 18 months after the child’s birth.

This therefore extends the current protection to those who are pregnant and those who have returned from maternity leave. 

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You may still be entitled to maternity pay if you are made redundant 

If you qualify for statutory maternity pay and are made redundant before going on maternity leave but after the beginning of the 15th week before your baby is due, then you will still be entitled to all your statutory maternity pay, as well as any redundancy payment.

If you are entitled to additional contractual maternity pay then this would usually end when your employment ends unless your employer agrees otherwise. 

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Take action quickly!

We encourage you to seek advice as soon as possible if you think you have been discriminated against because of pregnancy or maternity leave or if your employer has failed to offer you a suitable alternative role.

The time limit to bring a claim in the Employment Tribunal is only three months (less one day) from the act of discrimination or date of redundancy.

This is an extremely short period, let alone when you are pregnant or have a new baby to look after!

There have been various campaigns lobbying to extend this time limit.

However, to date, there is no indication that the Government will change this.

It is, therefore, crucial that you seek advice quickly to understand your position

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Contact our employment lawyers if you have any questions regarding redundancy or maternity leave.