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Can You Make An Employee On Maternity Leave Redundant?

Employees on maternity leave have special legal rights and protections and so before making such employees redundant you must tread very carefully and be aware of the following five things. Otherwise you could risk facing a costly claim.

Genuine Redundancy Situation

You must be able to prove that there is a genuine need to reduce your headcount. If the real reason you want to dismiss your employee is because she has had a baby or is on maternity leave, you will be discriminating against her and could face a discrimination claim. So, you must have evidence to prove why you need to make redundancies.

Fair Selection Process

You must choose who you are going to select for redundancy fairly and reasonably. This means you must choose a reasonable selection pool and apply fair, objective selection criteria to decide who should be at risk.

For example, if attendance is one of your selection criteria, you must discount any absence that relates to her pregnancy or maternity leave. Likewise, if performance or attitude is one of your criteria and her last performance assessment was done while she was pregnant and was lower than usual, then you must take that into account when you score her.

Communicate and Consult

It is easy to forget about employees that are not physically present at work. However, if you have an employee on maternity leave, you must consult with her and give her the same information as your other staff. It is natural to feel worried about disturbing her maternity leave, but the simple fact is that you cannot avoid it. If you do not consult with her, even if you do so with the best of intentions, you risk a discrimination claim. Instead, you should consult with her but should be flexible and sensitive in your approach.

For example, you can offer to have meetings with her near or at her home or by video conference if she would prefer and can use Keeping in Touch days for this. Also, ensure she has enough time to consider any information you send her, bearing in mind that she is on maternity leave.

Priority For Vacancies

If you select an employee on maternity leave for redundancy, before you actually make her redundant you must first offer her any suitable vacancy that you have. You must offer it to her without her having to ask for it and without any interview or application process. This does not mean that you have to create a role for her or dismiss someone else to make way for her.

What it does mean is that if you have a vacancy that is suitable for her you must offer it to her in priority over any other employees who are also at risk of redundancy, even if you would prefer another candidate or think they might be better.

It will only be a suitable vacancy if the role is suitable and appropriate for her to do, bearing in mind her skills and experience, and if the terms, conditions, location and status of the role are at least as good as her original role. If you are unsure about whether the vacancy is suitable, you should discuss it with her as part of your consultation process. This will avoid a later complaint or claim that you unfairly withheld the vacancy.

Legal Entitlements

If you decide to make an employee redundant while she is on maternity leave, taking into account the information above, she will be entitled to the following things:

Written Reasons

You must provide written reasons for why you are ending her employment, without her having to ask for it. You should make clear that she is being made redundant and avoid any suggestion that she is being dismissed for any other reason.

Redundancy Pay

If she would otherwise qualify for redundancy pay (contractual or statutory) then you will need to pay this to her irrespective of the fact that she is on maternity leave. You will not have to pay statutory redundancy pay if she has unreasonably refused a suitable alternative role. However, it can be difficult to assess whether you are entitled to do so, so always seek advice about your particular situation first.


You must give her notice that you are making her redundant, in accordance with the notice requirements in her contract and inform her that she can appeal your decision. In terms of notice pay, you must pay her for any periods of her notice period during which she is entitled to enhanced maternity pay. You must also pay her full notice pay if, under her contract, she is only entitled to the statutory minimum notice period. Otherwise, you are not required to pay her notice pay.

Statutory Maternity Pay (“SMP”)

Even if you make her redundant, she will remain entitled to SMP for the full 39-week period. So, you will need to pay this even if this extends past the end of her employment.

If you need any advice in relation to making an employee redundant who is currently on maternity leave, please do not hesitate to call us on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here..

Emma Roberts
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Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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