“Can I be made redundant during maternity leave?”
Your employer ought to offer you suitable alternative employment as priority, if it’s available and your role is made redundant while you’re on maternity, adoption or shared parental leave.
Changes to the law are currently going through the House of Lords, which will also help to protect you from redundancy once you’ve returned from maternity, adoption or shared parental leave, as well as while you’re pregnant.
What’s changing?
The Protection from Redundancy (Pregnancy and Family) Bill is part of the Employment Rights Act 1996.
Under regulation 10 of the Maternity and Paternity Leave Regulations 1999, if you’re on maternity, adoption or shared parental leave and your job is at risk of redundancy, your employer has an obligation to offer you suitable alternative employment, where a vacancy exists.
However, this doesn’t currently cover the period while you’re pregnant or when you return to work following family leave.
The proposed new rules extend the time during which you’re exempt from being laid off, from the date you disclose your pregnancy to your employer until 6–18 months* after the baby is born. It could also cover stillbirths and miscarriages.
In a redundancy situation, qualifying employees will have the right to be offered suitable alternative employment – ahead of their colleagues.
If your employer fails to follow the new rules correctly, compensation is uncapped for automatically unfair dismissal and discrimination claims.
The Bill is well underway, but it’s unclear when the new regulations will come into force. It’s also unclear whether you’ll need to have taken a minimum period of family leave to qualify for this enhanced protection or if it will apply when you’ve taken a short period of shared parental leave.
The problem
Even though discrimination against mothers is against the law, a report by the Equality and Human Rights Commission (EHRC) found that:
- 1/9 mothers were dismissed, made compulsorily redundant, or treated so poorly they felt they had to leave their job
- 1/5 mothers said they’d experienced harassment or negative comments related to pregnancy or flexible working from their employer and colleagues
Under the current law, some mums have achieved successful outcomes, including…
In recent news
Donna Patterson worked at Morrisons as an online buyer. She was offered the job of confectionary buyer, but the offer was withdrawn after Donna revealed she was pregnant.
When she returned to work after maternity leave having had her second child, she was told she should fit a full-time workload into her part-time hours and pay.
She was so stressed she took sick leave. Realising she’d been mistreated, she then made an internal complaint followed by a claim for discrimination to the employment tribunal.
The tribunal agreed she’d been treated unfairly, constructively dismissed, and had suffered “detriment of indirect sex discrimination after her maternity leave”. In compensation, Donna was awarded £60,000.
Taking on a supermarket giant like this had Donna labelled ‘Erin Brokovich’ in the press. You might remember the story from the Julia Roberts film released in 2000? Erin was working as a paralegal when she realised people were getting sick in her town, Hinkley in southern California, leading her to take on Pacific Gas and Electric. She secured a $333m settlement in 1997.
Morrisons are considering whether to appeal.
Joeli Brearley, chief executive of Pregnant Then Screwed, said this “happens to thousands of women every year”.
Here’s another example:
Helen Larkin had worked as a digital channel marketing manager for the company between 2013 and 2018, on the Isle of Wight. Her role was made redundant with just two weeks’ notice, when she was 8 months pregnant. She applied for two other suitable roles within the firm, but didn’t even get an interview. Another potential vacancy was concealed from her.
In 2020, Helen won £17,000 in a maternity discrimination and unfair dismissal claim against the Liz Earle Beauty Company.
What your employer should do
With the current economic situation, many employers may be considering restructuring and redundancies. No job is truly safe, it seems. Your workplace should be family-friendly and flexible, but not all employers are aware of (or prepared for) the change.
If your role is due to be made redundant while you are on maternity, adoption or shared parental leave – and for (perhaps) 6 months beforehand and 6 – 18 months* afterwards – you should be offered an alternative suitable and appropriate role (where one exists) on terms that are not substantially worse than your previous job.
In fact, you should get priority over anyone else who is provisionally selected for redundancy. This protection will start from the point at which you tell your employer that you’re pregnant.
it means that, if you take the maximum maternity leave of 52 weeks, you’ll get over 12 months of additional protection.
If more than one person included in the provisional redundancy selection has the right to be offered an alternative role, your employer should conduct a competitive interview and choose the top candidate or offer the position to the person with the highest redundancy pooling score.
When the law is passed, your employer should review and update their company policies and procedures, and train their HR team and any managers who are responsible for the redundancy process.
What this means to you
If you are treated unfavourably at work as a result of pregnancy or maternity/paternity/adoption, you are protected against discrimination.
For example, if you are a woman returning from maternity leave and your flexible working request is refused and this disadvantages you compared a male employee, you may have a case for indirect sex discrimination.
Note that the time limit for making a claim is three months less one day from the date you were made redundant or discriminated against. So, if you’re a new parent, you need to find time for it, despite the time devoted to caring for your newborn child! Because of this pressure, the Equality and Human Rights Commission (EHRC) are pushing to extend the deadline for new parents. But currently, that’s how it stands, so it’s best to act quickly!
We’re employment lawyers who support employees who’ve been treated badly at work. We don’t act for employers. As a first step, why not give us a call? The initial conversation is free, with no pressure to proceed.
We’ve dealt with many cases of discrimination against pregnant employees. You can read about some of them here:
Related reading
For more on this subject, please see our related articles:
- Pregnancy and maternity discrimination: Example cases
- Pregnancy/maternity: Do you know your rights?
- Can I claim for pregnancy discrimination?
- I’ve suffered pregnancy discrimination. What can I do?
- Father wins shared parenting sex discrimination case
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*reports vary