Can you still be made redundant if you are pregnant or on maternity leave?

You can. If the reasons are valid an employee who is pregnant or on maternity leave can still be fairly dismissed. However, it is when the dismissal is connected to the pregnancy or maternity leave that the dismissal will be automatically unfair.

To give an example, when deciding who to select for redundancy an employer may look at performance figures. If an employer fails to take account of time off for maternity leave, then the employee selected may have a good claim for unfair dismissal and also discrimination.

This area provides for a rare example of positive discrimination in the laws of England & Wales as when someone is on maternity leave they are entitled to be offered a “suitable alternative vacancy” where one exists.

Suitable alternative vacancy

If redundancy arises whilst you are on maternity leave and it is not practicable for your employer to continue to employ you under your existing contract, you are entitled to be offered a suitable alternative vacancy where one is available. The vacancy ought to start immediately after your existing contract ends and can be with an associated employer.

The alternative vacancy must:

• Be both suitable and appropriate in the circumstances; and
• Not be substantially less favourable to the employee with regard to the capacity, place and terms and conditions of employment than if the employee had continued in their old job.

It is interesting to note that this lawfully gives employees on maternity leave priority over other employees who are also at risk of redundancy. This is a rare example of positive discrimination in the law of England & Wales. Failure by the employer to comply with these requirements would automatically give rise to a claim for unfair dismissal.

If your employer is not acting fairly and wishes to avoid an Employment Tribunal claim, you may be in a strong negotiation position and should seek expert advice and support from a solicitor.