Know your redundancy rights

Out of sight, out of mind is a familiar feeling among mums returning to work after maternity leave. This, paired with misinformation about employment rights around redundancies, can be extremely confusing. But with more economic challenges on the horizon, and redundancies in all sectors likely, mums must be aware of their rights.

Here Susie Al-Qassab, Bellevue Law‘s resident expert on employment law, shares what mums need to know and what to look out for when being put through a redundancy process.

What does the law say about maternity leave and redundancy?

Whilst we await the second reading of a bill to prohibit redundancy during pregnancy and maternity leave, and for six months after the end of pregnancy or leave, sponsored by Maria Miller MP, normal redundancy law applies to those on maternity leave with one special protection.

As with all redundancies:

• There needs to be a genuine redundancy situation.
• Selection for redundancy must be fair. If you’re selected for redundancy because of pregnancy or maternity leave, this is automatically unfair and discriminatory.
• Employers must follow a fair process. Crucially, this includes meaningful consultation with employees, including those on maternity leave. If your employer proposes making more than 20 redundancies within a period of 90 days, then they must also include you in collective consultation.

The special protection:

Under regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, if you are to be made redundant during maternity leave, you must be offered any suitable alternative vacancies. You do not have to apply or be interviewed for any suitable alternative vacancy and should be offered it in priority to your colleagues. This protection exists because women on maternity leave may not be able to apply for jobs or attend interviews when they are about to give birth or are at home with a small baby. They may also be disadvantaged because they have been out of the workplace for some time.

A closer look at the special protection:

Regulation 10 is only triggered once the employee has been selected for redundancy; it doesn’t apply during the selection process itself.

Employers are not permitted to wait until a restructure has been completed (when all available vacancies in the new structure may already have been filled) before engaging regulation 10.

Regulation 10 protection only applies whilst you are on maternity leave. Pregnant women who have not yet started maternity leave do not have this special protection in a redundancy situation.

If your employer is saying that a role is not a suitable alternative:

• ask for a written job description for the role (a different job title may still constitute a similar role);
• ensure your employer has your cv and is aware of your skills and experience;
• ask for a written explanation about why they don’t consider it suitable.

How do I know if I’ve been dismissed unfairly?

These are some factors that could mean your redundancy is unfair:

• If your employer hasn’t adequately consulted with you because you’re on maternity leave
• Selection for redundancy connected with the fact that you took, sought to take or availed yourself of the benefits of maternity leave is a specific ground for automatic unfair dismissal.
• If you have been made redundant, but the person covering your maternity leave has not, this is not a genuine redundancy situation.
• If you are made redundant on your return because the company has managed without you whilst you were away.

What to do if you’re concerned about unfair dismissal because of pregnancy or maternity leave

• Raise it with your employer during redundancy consultation or separately engage in the grievance process formally or informally.
• Try to gather information and evidence.
• Seek information through an informal question-and-answer procedure. ACAS has produced some beneficial guidance on this.

If you cannot resolve the situation, seek advice promptly about bringing a claim in the employment tribunal. Don’t hang around. There is a three-month time limit from dismissal or the committing of a discriminatory act. You have to notify ACAS about a claim before you issue it, and they will also help conciliate a settlement if they can.

Your employer must not mistreat you because you have raised concerns about discrimination. If they do, this will likely amount to unlawful victimisation under the Equality Act 2010.

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