Redundancy is a potentially fair reason for dismissal regardless of whether you are pregnant or on maternity leave. But if an employer selects you for redundancy purely because you’re pregnant, on maternity leave, or recently had a child, you can claim automatic unfair dismissal and sex discrimination.
In all cases, employers have the burden of proving they acted reasonably when carrying out the redundancy. If your case reaches an employment tribunal, they will consider whether a reasonable employer could have dismissed you for redundancy in the circumstances of your case.
The tribunal will take into account whether your employer consulted with you and whether the appropriate pool of people for selection was identified. They will also consider whether suitable alternative work was available and whether your employer considered moving you to a different position. It is also very important that your employer follows a fair procedure and gave you a right of appeal against any decision to select you.
It is not for the tribunal to decide if the decision by your employer to make redundancies was the right decision, however, only whether it was within ‘a band of reasonable responses’ that a reasonable employer might have adopted. A tribunal will be reluctant to get involved in decisions taken for business reasons.
Special rights for women made redundant during maternity leave
If you’re on maternity leave and you’re one of a number of employees at risk of redundancy, you must be offered ‘suitable alternative positions’ before colleagues who are not on maternity leave. If your employer offers a suitable alternative position to someone else instead of you, you may claim unfair dismissal.
In addition, once you qualify for statutory maternity pay you are entitled to receive it for 39 weeks even if your redundancy takes effect during the statutory maternity period.
Special rights for women made redundant during pregnancy
Pregnant women (not yet on maternity leave) who are made redundant may still qualify for statutory maternity pay if they: (1) work for the same employer for at least 26 weeks leading up to the 15th week before their baby is due (the ‘qualifying week’); (2) they remain employed during all or part of the qualifying week; and (3) earn at least 111.00 per week on average in the eight weeks before the end of the qualifying week.
While women made redundant prior to the qualifying week, cannot claim statutory maternity pay, they can claim maternity allowance.
Note also that you can apply to your local HM Revenue & Customs office for statutory maternity pay if you believe that your employer has unfairly selected you for redundancy prior to the qualifying period to avoid paying you statutory maternity pay. However, you must apply within six months of the first day your statutory maternity pay was due and also bring a claim for unfair dismissal and sex discrimination against your employer.
Help and advice
If you believe your employer has unlawfully made you redundant while pregnant or on maternity leave, you can obtain free, confidential and independent advice from Acas.
Alternatively, you may want to speak with a solicitor who specialises in employment law. You can find a solicitor in your area by searching our solicitor directory. Just fill in the form in the top right corner of this page.