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Should I wait before telling an employee on maternity leave that her role may be redundant?

26 Jun 2019

With often the best of intentions, some employers wait until a woman returns to work following a period of maternity leave before informing her of a potential redundancy situation. However, this course of action can bring about unintended legal risks. To avoid falling foul of legal obligations, employees on maternity leave should be told of a potential redundancy situation when it arises.

Regulation 10 of the Maternity and Parental Leave Regulations 1999 provides special protection for women on maternity leave in redundancy situations. It states that if a redundancy situation arises during a woman’s maternity leave, as soon as her employer realises it is not practicable by reason of redundancy for her to continue working under her existing contract, she is entitled to be offered a suitable alternative vacancy to start immediately after her existing contract ends. 

Failing to inform a woman on maternity leave who may be impacted by a redundancy situation when it arises breaches the Regulation 10 duty and risks the woman missing out on a suitable alternative vacancy if one exists at the time. Delaying also risks a discrimination claim, as it is likely that the only reason a woman is not informed of a redundancy situation at the time it arises is because she is on maternity leave.

A “suitable alternative vacancy” has a specific meaning in Regulation 10 and careful analysis is often required to determine whether any alternative employment falls within the relevant parameters. Broadly, the role must be no less favourable than her previous role taking into account matters such as status, pay and location.

The Regulation 10 obligation places a woman on maternity leave in a preferential position to others in the same redundancy pool. This means that, if suitable alternative employment exists (in accordance with Regulation 10) the woman on maternity leave is entitled to be offered it ahead of those at risk employees not on maternity leave, regardless of whether she is the most qualified for that suitable alternative employment. A delay in informing a woman on maternity leave of a redundancy situation may result in someone else securing an alternative vacancy in circumstances where the woman should have been entitled to be offered it.

The government is currently consulting on whether to extend Regulation 10 protection to cover the period from when a woman first informs her employer in writing of her pregnancy to 6 months following her return to work after she has taken maternity leave, so there is a possibility that this ‘special protection’ in redundancy situations may be more wide reaching in the future. 

For further information or advice, please do not hesitate to get in touch with Abigail Maino, Senior Associate in our DMH Stallard Employment Team.  

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