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07 February 2023

Myth-busters: dealing with women who are pregnant and/or on maternity leave during a redundancy process

3 mins

Employers are only too aware of the potential difficulties they face, such as discrimination claims, when the company has to go through a redundancy process and they have staff who are pregnant and/or are on maternity leave, and whose jobs may be at risk of redundancy or form part of a pool of selection to be made redundant.

Employers should not be scared of making individuals who are on maternity leave and/or are pregnant redundant. However, this must be done carefully and where appropriate, employers should obtain legal advice before embarking on such processes. 

Below, we discuss three myths relating to making individuals who are pregnant and/or on maternity leave redundant:

  1. An employer cannot make a pregnant woman redundant
    This is not technically correct. As long as the employer has a genuine redundancy situation that complies with statute, they can potentially make a pregnant woman redundant. However, employers need to ensure that the redundancy is not because of the woman being pregnant and/or it is not due to any pregnancy-related sickness. Again, caution needs to be taken, and preparation is key when deciding whether or not a pregnant woman’s role is potentially at risk of redundancy or that she forms part of a selection pool for redundancy. 

  2. Those on maternity leave must apply with others at risk of redundancy for any suitable alternative employment vacancies
    This is incorrect. If a redundancy situation arises when an employee is on maternity leave, they have special protection. If suitable alternative employment is available, employers are obliged to offer those employees on maternity leave the suitable alternative vacancy as priority to anyone else who is provisionally selected for redundancy.

  3. This special protection extends to women who return from maternity leave – if there is suitable alternative employment, they will get that role automatically
    This is incorrect. Currently, if the employee returns from maternity leave and the redundancy situation arises after they have returned to work, then any suitable alternative employment does not need to be offered first to that individual just because they have returned from maternity leave. However, this is dependent on when the actual redundancy situation arose.

With the three scenarios above, there are potential pitfalls, and it is advisable to seek legal advice where necessary.

Private member’s pregnancy/maternity discrimination bill

There is currently a private member’s pregnancy/maternity discrimination bill that the government is backing.

This bill proposes to extend protection to apply to pregnant women before they start maternity leave and after they return to work. It will also protect new parents returning to work from adoption or shared parental leave.

For a confidential conversation about the issues above, please contact our Employment team on +44 20 7833 4433, or submit an enquiry form here.

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