Pregnant and being made redundant: ask the expert

I began working for a small business in December and found out I was pregnant in January.  My employer was fine about my maternity leave, until I brought up holiday pay. He said he would make me redundant “because you are going on maternity leave.” He said I have no legal rights as I have not worked there for a year. Is that so?

Your question touches on several issues: rights to redundancy payments, rights to maternity payments, rights to accrue annual leave while on maternity leave, right to be treated equally.

1) Redundancy Payment
To be eligible for a redundancy payment, an employee needs to have been employed for at least 2 years. Since you have only been employed there since December 2008, you would not have any rights to ask for a redundnacy payment.

2) Right to Maternity Pay
An employee can claim Statutory Maternity Pay (SMP) as long as the following conditions are met:
– employed by the same employer continuously for at least 26 weeks into the 15th week before the week your baby is due
– earning an average of at least £95 a week (before tax)
If you have the right to receive SMP, you will get it even if you  are made redundant.

I do not have your exact employment start date or due date for your baby, but I do not think that you will be eligible to claim SMP due to insufficient service with this employer.  If you are not eligible for SMP, you might get Maternity Allowance (MA) if you:
– have been employed or self-employed for at least 26 of the 66 weeks before the week your baby was due (a part week counts as a full week)
– earned an average of £30 over any 13 of those 66 weeks

So you might be able to claim this. For information on how to claim it , go to the website www.directgov.co.uk and then Employment/Work & Families/Pregnancy & Maternity Rights or ask the Inland Revenue.

3) Right to paid annual leave while on  maternity leave
You are correct that women on maternity leave accrue annual leave which if denied would breach the Working Time Directive. This can be taken either before Maternity leave starts or tagged on at the end, thus extending the maternity leave.

4) Right to be treated like other employees
In terms of your employer making you redundant because you are going on maternty leave, this is not lawful since employers should not be treating an employee who is pregnant/on maternity leave differently from other employees. By doing so this opens them up to a claim of sex discrimination for which there is no qualifying service date.

So your employer is not acting professionally or legally by saying this. I would suggest that you have another conversation with your employer and gently discuss these points. While it can be frustrating for small businesses to cover work when an employee goes on annual leave, they still need to act within the law. If this gets you nowhere you might want to talk to ACAS who provide a free,confidential phone service and get them to advise on next steps and whether you need to get legal advice.




Comments [3]

  • Anonymous says:

    Thank you for your help:-)
    My employer asked me to attend a meeting with regards the changes coming up with regards my role as a nanny. She told me I could bring someone to the meeting and told me there was a risk of redundancy. She then about 2 days before the meeting e-mailed me a letter stating about risk of redundancy and if we cannot decide on something this would be the only solution. I just feel cross as since April and then only 3 weeks ago I have asked about my role to be told and have e-mails in relation to all this. Then 3 weeks ago I agreed by sending a e-mail to do the 12-7 hours for the 3 days.Now they have said about redundancy and are away on holiday. So my 4 weeks’ notice would be the end of August; which works out well for them and I feel it has all been planned so they can get a new nanny and so they do not have to pay my annual leave for that year. I planned to finish work in the middle of October so am now going to finish about 7 weeks early, which will then have an effect on my salary leading up to my maternity leave.
    Thank you once again for your help. I am so grateful.

    Editor’s note: Do you in any way think that this treatment is linked to your pregnancy? Your SMP will not be affected as it is calculated based on your average earnings around the 15th week before your due date. If you require further information, please correspond via the Advice & Support/Q & A page as then we can email you for any further information our experts might need to help you.

  • Anonymous says:

    Hi there well I am a nanny and am 26 weeks pregnant. I work as a nanny and was told on Friday at a meeting that I was asked to attend by my employer that due to change in the family needs from beginning of September my hours would be cut. So instead of doing 8-7 for them 3 days a week, they now want me to do every day 12-4.30; yet they know that on two of the days I work somewhere else.
    If I am unable to do this then the only other thing they can offer is redundancy. They have gone away now and would like an answer when they get back with a four-week notice period if i decide to take the redundancy route.
    I am just cross as since April I have been asking them about all these changes as I knew the little girl I look after would be going to school; yet I kept being told I would do my 3 days still 12-7 so was happy with that. It just seems to me they have planned this all along and have done it in a way that I would still be with them to cover the school holidays so they can then start a fresh in september with another nanny as they know I cannot do a full week with them as I work somewhere else.

    Editor: Do you want to know whether they have followed the proper consultation process for changes to terms and conditions? [see http://www.direct.gov.uk/en/employment/employees/employmentcontractsandconditions/dg_10028079]

  • Anonymous says:

    I am 26 weeks pregnant and in April I was advised that my hours as a nanny may be cut due to the family needs changing. Then in June I got told that the little girl I look after will be going to nursery school so will need collecting at 12. So my hours would go from 8-7 3 days a week to 12-7 3 days a week from September; 6 weeks before I plan to go on maternity leave; which will then affect my SMP pay, I guess. Anyway I agreed to do the hours 12-7 until I finish and then we would see what their needs are when I return from my maternity leave.
    Now last Friday (13th July) I have been asked to attend a meeting and can bring someone along with me. My boss said they are going to talk through a few things that we could do; one of which is making me redundant at the end of August. I am not happy about this as I thought from beginning of September I would be doing 12-7 on the 3 days I work as discussed before and I have e-mails to state this. They just seem to keep changing their needs and if I am honest I feel they are just trying to get rid of me so that they can get a new nanny in to do my role and not have to pay my annual leave for the time I am off on maternity leave.

    Editor’s note: You do not state how many weeks’ pregnant you are, but you would still qualify for SMP if you have been working past the 15th week before your due date. The week that is taken into account is that week. See http://www.direct.gov.uk/en/moneytaxandbenefits/benefitstaxcreditsandothersupport/expectingorbringingupchildren/dg_10018741
    Your employer cannot make you redundant because you are pregnant. This is illegal and you could sue for discrimination. Keep notes of your interactions with your employer and take someone with you for the meeting on Friday as they can act as a witness.


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