On secondment and pregnant & original role is being made redundant

I am currently on a secondment to cover a colleague’s maternity leave and I have just found out my substantive role is at risk of redundancy and that I will be going through consultation. The role would be made redundant by the Spring.

I am also currently pregnant, but I have not told my employer yet.

My question is what happens if I am made redundant from my substantive post? Will they allow me to continue with my secondment until I go on maternity leave ? If I am made redundant from my substantive post, would I continue to be an employee until the secondment ends and would I then be eligible for redundancy pay?

Woman holding pregnancy test

 

Congratulations on your pregnancy. I am sorry to read about the redundancy situation affecting your substantive role and your worries about how this will all be affected by your pregnancy. There are a few strands to your query and it is quite complex so I will deal with them all separately below.

Firstly, your secondment. Normally the paperwork dealing with a secondment should explain what happens when the secondment ends; i.e. you return to your substantive role. It is unusual that the paperwork you’ve been given doesn’t specifically state this, but as it simply refers back to your other terms and conditions I think you could work on the basis that this is what should happen. It is worth clarifying this with your employer, though, to ensure there are no misunderstandings. Therefore if the redundancy situation had not arisen, you would have returned to your normal role at the end of the secondment period (or sooner if the person returned from maternity leave earlier). You should therefore be guaranteed to remain in the seconded role for this period. This should take you beyond the due date for your own pregnancy so you would go on your own maternity leave from the secondment role.

Secondly, your substantive role. If the redundancy hadn’t arisen, after your secondment and maternity leave you would have been entitled to return to your substantive role or something similar, depending on how much maternity leave you took. As the redundancy situation has arisen, they are required to include you in the full redundancy consultation process which is what they appear to be doing. This redundancy process shouldn’t affect your secondment, but will affect the role you return to at the end of the secondment (and your maternity leave). There are a couple of different variations depending on the outcome of the redundancy process:

  • If you are given one of the alternative roles which are available, this new alternative role would become your substantive role. When your secondment ends you would then return to this new substantive role instead. Given your pregnancy, in reality, this would be at the end of your maternity leave and you would technically “move” between the two roles whilst on maternity leave.
  • If you are not given one of the alternative roles and are made redundant from your substantive role, this would take effect at the end of your secondment rather than whenever the redundancy is deemed to take effect. Unless you are able to find a different role within the business to move to when the secondment ends, your redundancy would then happen at the end of the secondment and you’d receive your redundancy pay and any notice and holiday pay you are entitled to.

I appreciate you are concerned about notifying your employer of your pregnancy, but there are additional obligations on employers during a redundancy process when a woman is pregnant. It does not prevent them from making you redundant if they follow a fair process and you are not selected for redundancy because of your pregnancy or maternity leave. They cannot legally select you for redundancy or refuse to give you an alternative role because of your pregnancy. If they did do either of these things you may have a discrimination claim against them. They also have obligations under health and safety laws in relation to your pregnancy which only apply once they are aware of your pregnancy. I would therefore recommend you did raise it as part of the conversation so you can be open about your situation and discuss the options with them.

If the redundancy was due to take place once you were on maternity leave, you would have the right to be offered any suitable alternative vacancies ahead of any other employees; i.e. you are given preferential roles for certain roles. This doesn’t cover all alternative roles they have available, only those which are sufficiently similar to your existing role that they meet the legal definition of a “suitable alternative vacancy”. However, this only applies to women who are on maternity leave at the moment though and given the timings the process may finish just before this and so you would not be able to benefit from it. The law is changing next year to extend this protection to women who are pregnant but who have not yet started their maternity leave. Unfortunately, there is no fixed date for this to come into force, although it’s expected it will be around April 2024. Depending on the timings of the redundancy and when the law comes in this could help you, although, unfortunately, it might be just a bit too late for you.

I hope this helps you approach the conversations with your employer. Good luck with the redundancy process and your pregnancy.

*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton. 



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