Pregnancy and family leave when making redundancies

Andrew Masters

Partner & Head of Employment

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July 15, 2020

Categories Employment Law Updates

Part six of  ‘Seven things to think about when making redundancies’ series

6. Pregnancy and family leave

In any redundancy exercise it is crucial to ensure that pregnant women and those on maternity, adoption or shared parental leave are not placed at a disadvantage.

There is, however, no law against making such employees redundant provided the redundancy is a genuine one and the pregnancy or taking of leave does not in any way influence the employer’s decision.

Employers should also be careful that employees who have recently returned from such leave are not placed at any disadvantage in a redundancy selection exercise. Selection criteria based on recent performance in the role can be a particular problem here. The fact that the employee has not been at work must not lead to a less favourable assessment.

It may also be problematic to assess an employee’s performance before she went on maternity leave as that may also have been affected by her pregnancy. The better approach is to take a wide view of the employee’s performance based on her overall career history.

Employees who are on family-based leave should also be consulted about forthcoming redundancies and it may be necessary to use one or more of their ‘keeping in touch days’ to attend consultation meetings. Employers should ensure that such employees are included in any related correspondence.

If the employer is communicating with the workforce electronically then it will need to ensure that this can be easily accessed by the employee and will be seen at the same time as it is seen by other employees – or at least as soon afterwards as is reasonably possible. The selection process itself must then be carried out in a way that does not place an employee on maternity leave at any disadvantage. If the employer is interviewing employees as part of the selection process, then a different way will need to be found to assess any employee on maternity leave.

Finally, those on maternity, adoption or shared parental leave are entitled to preferential treatment when it comes to the consideration of alternative work. If the employee is due to be made redundant, but the employer has a suitable alternative vacancy elsewhere in the organisation then the employee must be offered that vacancy.

Note that the employer’s duty is to make the offer of alternative work. This is not just a duty to give the employee an opportunity to apply for it, nor to give the employee’s application fair consideration. If the vacancy is suitable for the employee, then the employer must offer it – even if better qualified or more suitable candidates are available.

For legal advice about making redundancies contact Andrew Masters on 01227 763939 or email