Pregnancy/Maternity and Redundancy
What is redundancy?
A redundancy situation is where there is, for example, either a closure of the business (or particular workplace) or a reduced need for employees to do work of a particular kind.
Must I take any special measures for pregnant employees if I am considering redundancies?
You must make sure that you do not disadvantage a pregnant woman on the grounds of her pregnancy. For further information see the Labour Relations Agency's general guide on handling redundancies
What do I need to do to ensure the redundancy procedure is fair and doesn’t discriminate against any of my employees?
You must follow a fair process. You must take the following steps:
- Identify whether and why there is a redundancy situation. If you are not sure see the Labour Relations Agency's advice on handling redundancy
- Consult any trade union (if there is one) and employees, including those who are absent with pregnancy related sickness or on maternity leave.
- Identify relevant employees likely to be affected by the redundancy (who may not be limited to the exact same work or grade).
- Draw up consistent and fair criteria or use pre-agreed criteria for selecting people for redundancy which are relevant to the job going forward and which are transparent, objective, and capable of measurement.
- Identify who in your business will select those who will be considered for redundancy. The person should make him/herself familiar with the work, experience, qualifications and skills of all affected employees including employees who are absent due to pregnancy.
- Consult all affected employees about the redundancy criteria and how they have been assessed so they can correct any mistakes.
- Ensure there is a fair procedure for considering suitable alternative work.
- Ensure that you have a fair and transparent way of dealing with any appeal. Involve a more senior manager in the appeal if you can.
What issues must I consult about when I plan to make employees redundant?
You must consult all employees about:
- Reasons for redundancy and the posts affected.
- Alternatives to compulsory redundancies, such as voluntary redundancies, or reduced working hours.
- The selection criteria for those employees at risk of redundancy.
- How the employee’s redundancy selection assessment was performed.
- Any suitable alternative work.
You must make sure that any pregnant employees off work, for example due to a pregnancy related illness, have the same access to consultation information as other employees.
Should I consult an employee on maternity leave if there is a redundancy exercise?
Yes. An employee on maternity leave must be consulted in the same way as all other employees. If she cannot come into work to attend meetings you should consider other ways of consulting her, by telephone or visiting her at home or meeting in a convenient place if she prefers. Failure to do so would be maternity discrimination.
How do I decide the right selection criteria to use when making employees redundant?
If you use a selection process to decide who to make redundant it must be consistent, transparent, objective and measurable. Typical criteria include:
Objectively assessed individual skills and/or qualifications.
Objectively assessed performance at work.
Attendance and absence records (with caveats for disability, pregnancy/maternity).
Live disciplinary record.
If you have decided to use performance as one of your main selection criteria, you must ensure you do not disadvantage pregnant employees or those on maternity leave. For example:
If the last performance assessment was done during pregnancy or maternity leave and showed lower scores than usual for this reason, this must not be taken into consideration against the selection criteria.
If an employee missed the performance review cycle because of pregnancy related illness or maternity leave it is good practice to consider using a previous review and awarding the same score unless there is good reason (unrelated to her pregnancy) for giving a different score. She must not be disadvantaged if she missed the performance review cycle because of pregnancy related illness or maternity leave.
How can I ensure that a pregnant woman/woman on maternity leave is not disadvantaged during this process?
It is good practice to first consider how she might be disadvantaged on the grounds of her pregnancy or maternity leave. You must then try to remove any possible disadvantage. For example:
Pregnancy related illness may affect her performance so must be discounted.
She may miss out on what’s been happening at work, such as information on workplace developments so you must make sure she is updated.
If there is to be an interview it is good practice to hold this at a time to suit the employee and not too close to the birth and;
If an interview process is required, it is good practice to make sure the employee is given sufficient notice (for example to make childcare arrangements and to catch up with work-related developments).
What type of redundancy selection criteria may be discriminatory?
The following selection criteria are likely to be discriminatory:
Marking an employee down because of pregnancy related sickness or absence.
Assessing a pregnant employee’s performance for a period when she was suffering from pregnancy related sickness – even if she did not take time off.
Targets which were measured during a period when her work was affected by her pregnancy.
Number and size of client base, when a pregnant employee has handed over her clients because of her impending maternity leave.
In the absence of an actual appraisal, awarding her ‘average’ when in her previous appraisal she scored ‘good’ or ‘exceptional’ (unless there is a reason unrelated to her pregnancy for awarding the lower grade).
Criteria that disadvantages part-time workers, for example the ability to work when required or to work overtime.
Can I make an employee redundant when she is on maternity leave?
Yes, you can make an employee redundant when she is on maternity leave provided that:
There is a genuine redundancy situation which is not caused by the maternity leave itself.
You ensure any women who have been on maternity leave, are currently on maternity leave, or are planning to go on maternity leave are not disadvantaged.
You consult the employee on maternity leave in the same way as other employees. If she cannot attend meetings at work, find another way of consulting, for example by telephone, meeting nearer her home or at home (if agreed).
The selection process, including selection criteria and their scoring, does not disadvantage the employee on the grounds of her pregnancy or maternity leave.
If the employee’s role is made redundant during maternity leave, you are legally required to give her the first option on any suitable alternative work, which is available. She must be considered before any other employee. It is your responsibility to identify a suitable alternative available position and offer it to your employee. It is not enough to tell the employee to search the intranet to find a suitable alternative job.
What is the position if an employee is on a fixed-term contract which comes to an end during her maternity leave?
Employees on fixed-term contracts have similar maternity and employment protection rights to permanent employees. If you do not renew a fixed-term contract because of maternity leave this would be maternity discrimination.
What is suitable alternative work?
The alternative work must be suitable and appropriate in the circumstances. Suitable alternative work means that the job must be no worse than her previous role in relation to location, terms, conditions and status.
If there is more than one suitable alternative job you are not legally required to offer her the option of which one she wants. Your obligation is to offer her a suitable alternative job.
I need to fill a vacancy immediately that would suit an employee at risk of redundancy, but they're going on maternity leave
It would be discrimination to refuse to offer such a job to an employee who is about to go on maternity leave because she cannot start the job until the end of her maternity leave.
Can I tell an employee on maternity leave to find a suitable alternative job herself and to apply for it?
No, you must identify any suitable alternative job and offer it to her. An employee on maternity leave who has been selected for redundancy must be offered a suitable vacancy before any other employee. If you do not do this, her redundancy may be automatically unfair dismissal.
What is the situation if she refuses an offer of a suitable alternative job?
If you offer a suitable alternative job to a woman on maternity leave and she turns it down, without a good reason, she loses her right to a redundancy payment.
If there is a suitable alternative job, can I offer it to the rest of the redundant employees or just the pregnant employee?
Pregnant employees do not have priority over vacancies in a redundancy situation. However, employees on maternity leave, adoption leave or shared parental leave do have priority and must be offered a suitable alternative job before others can be considered for it.
To decide if a job is suitable and appropriate the law says it must be no worse than an employee’s previous job with regard to location, terms, conditions and status and the employee has the capacity for the work.
For example, if the vacancy is at a different location and poses additional childcare and travelling problems for the employee it may not be suitable, in which case if she refuses it she would not lose her right to a redundancy payment.
What if there is no suitable alternative job to offer an employee?
If there is no suitable alternative vacancy, a woman can be made redundant during her maternity leave provided the reason for redundancy is not connected to her pregnancy or maternity leave and you have followed a fair redundancy process.