Should I take early maternity leave or risk redundancy: ask the expert

I work for a public sector body and everyone below the senior management level is at risk of redundancy, due to a huge restructure. The consultation period ends soon and then there is a process outlined whereby people will have to apply for first choice jobs. If unsuccessful, you will then have to apply for your second choice job, and if still unsuccessful, there is a redepolyment pool. I am currently 25 weeks pregnant and plan to take annual leave in July. My question is – should I start my maternity leave asap to safeguard my enhanced maternity payments or should I risk going through the process and potentially being made redundant?

You have asked whether you should start your annual leave earlier than planned in order to safeguard yourself and your enhanced maternity payments.  You do not need to do this and will be protected, in so much as is possible, in any event. Your original plan was to start your annual leave in July and you are due to start your maternity leave on your due date in August.  However I understand that August is the time when employees will be notified if their second choice job under the compulsory redundancy scheme has been successful.

If an employee is dismissed or selected for redundancy where the only (or principal) reason for her dismissal or selection is related to maternity leave, pregnancy or birth then the dismissal will be automatically unfair.  It will also constitute sex discrimination.

If a redundancy situation arises during an employee’s maternity leave and it is not practicable by reason of redundancy for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy (if one is available). The new job must be such that the work to be done is both suitable and appropriate and the capacity and place in which she is to be employed and the other terms and conditions of her employment are no less favourable to her then if she had continued to be employed in her old job.  Therefore the employee on maternity leave has priority over other employees who are also at risk of redundancy and if the employer does not comply with this requirement, the employee will have a claim for automatic unfair dismissal.

I understand you will be on maternity leave by the time the redundancy process is complete as, following the notification of the second choice job, unsuccessful employees will then enter into a re-deployment pool before being made compulsory redundant. You should therefore receive the enhanced protection referred to above.

You mention enhanced maternity payments.  The law at the moment states that if an employee is dismissed during her maternity leave the maternity leave will come to an end.  However if she is entitled to statutory maternity pay she will continue to receive it for the remainder of the statutory maternity pay period.  An employee who is made redundant during ordinary maternity leave or additional maternity leave is entitled to statutory redundancy pay as if she were not on maternity leave.  She will also have to be dismissed with full notice and she should receive what she normally receives if she is not under notice and this means any contractual or statutory maternity pay she would have received during the notice period. However, you may not be entitled to receive enhanced maternity pay for the period outside your notice pay.

Your employer can still make you redundant when you are on maternity leave, providing it does follow a fair procedure and there is no suitable alternative employment available for you.

If you refuse a suitable alternative offer and your employer then decides to dismiss you for redundancy, the dismissal is likely to be fair. Also, if you unreasonably refuse a suitable offer, you will also loose your right to a redundancy payment. NB: You may have a claim for pregnancy and maternity discrimination if the fact you have given birth or you are on maternity leave has been a factor in your selection for redundancy and/or if you have not been consulted or adequately consulted because you are on maternity leave.

From the information you have supplied your employer needs to treat you very carefully.

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