Handling Redundancy During Pregnancy And Maternity In The UK

Redundancies are never easy, and they’re even more sensitive when pregnancy, maternity leave or the period after maternity leave is involved. If you’re making changes to your team or restructuring, it’s essential to understand the special redundancy protection that applies to pregnant employees and those on or recently returning from maternity leave.

Handled well, you’ll reduce legal risk, look after your people and keep your business moving. Handled poorly, you could face discrimination or unfair dismissal claims, costly tribunal outcomes and reputational damage.

This guide walks you through what UK law requires, the expanded protections now in force, and a practical, step-by-step approach to running a fair process.

What Does “Redundancy Protection Maternity” Mean Under UK Law?

In short, UK law gives pregnant employees and employees on or recently returning from maternity leave additional protection during redundancies.

The key legal pillars are:

• Equality Act 2010 – prohibits pregnancy and maternity discrimination. Selecting someone for redundancy because they’re pregnant or on maternity leave (or because of a related reason) is unlawful.
• Employment Rights Act 1996 – sets out redundancy rights, unfair dismissal protections and redundancy pay rules.
• Maternity and Parental Leave etc. Regulations 1999 – set maternity leave entitlements and special priority rights for suitable alternative vacancies.
• Protection from Redundancy (Pregnancy and Family Leave) Act 2023 – extends the period of priority protection beyond the maternity leave itself (brought into force by regulations from 6 April 2024).

Redundancy protection maternity is fundamentally about two things:

• Non-discrimination: You must not select, score or treat someone unfavourably because they’re pregnant or on/after maternity leave.
• Priority for suitable alternative vacancies: If a suitable alternative role exists, an employee protected by these rules should be offered it before others (and without competitive interview).

It’s absolutely fine to run a genuine redundancy process that includes a pregnant employee or someone on or after maternity leave, but the process must be fair, objective and compliant with these specific protections.

Who Is Protected And When Does It Apply?

From 6 April 2024, protection extends beyond the period of maternity leave itself. The headline timeline for maternity is now:

• Pregnancy: From the point the employee tells you they’re pregnant (the notification date), enhanced protection begins.
• Maternity Leave: Protection continues throughout maternity leave.
• After Maternity Leave: Protection continues for a further period after the employee returns to work. In most cases, this extended period runs until 18 months from the child’s date of birth (subject to the detailed rules).

Why does this matter? During this protected window, if a genuine redundancy arises and there is a suitable alternative vacancy, the employee has priority to be offered that role. This priority applies ahead of other at-risk employees who do not have the same protection.

This protection also applies in similar forms to adoption leave and shared parental leave (with rules tailored to those types of leave). Focus here is maternity, but the underlying principle-priority access to suitable alternative vacancies during a protected period-is consistent.

How To Run A Lawful Redundancy Process When Pregnancy Or Maternity Is In Play

You can run a fair and compliant redundancy process by following a structured approach and documenting every step carefully. Here’s a practical playbook:

1) Establish That The Redundancy Is Genuine

Start by clearly defining the business rationale: closure of a location, reduced demand, automation, or reorganisation that removes the need for certain roles. Keep written evidence (board minutes, financial data, restructure proposals). A genuine redundancy is the foundation of a defensible process.

2) Define Roles, Pools And Objective Selection Criteria

Identify the roles at risk and set a fair selection pool. Use objective, measurable criteria that are relevant to the role (e.g. skills, qualifications, performance against documented KPIs, disciplinary record). Avoid criteria that could inadvertently penalise employees who’ve been on maternity leave-for example, weighting “recent sales” or “attendance” without appropriate adjustments may be discriminatory.

3) Adjust For Absence And Avoid Discriminatory Metrics

If your scoring uses recent performance or attendance data, you must adjust to remove any disadvantage caused by pregnancy or maternity leave. Consider the person’s performance prior to leave or use alternative measures that fairly reflect capability.

4) Consult Meaningfully (Including During Leave)

Consultation is not a box-ticking exercise. Share the business case, selection methodology and provisional scores. Invite feedback and consider alternatives. If someone is on maternity leave, make reasonable adjustments to consult-offer video calls, flexible timings and provide information in writing. Consultation failures are a common reason tribunals find dismissals unfair.

5) Check For “Suitable Alternative Vacancies”

During the protected period, you must identify any suitable alternative vacancy and offer it to the protected employee. Suitability turns on factors like similar status, terms, location and skills match. If there’s more than one protected employee for a single role, you can use fair selection between protected candidates-but you should not require them to compete with non-protected employees for that role.

6) Make The Offer Properly And In Time

Offer the suitable role before the redundancy dismissal takes effect, on terms that are not substantially less favourable. Confirm in writing and give reasonable time for a decision. Failing to offer a suitable alternative role to a protected employee will almost always make the dismissal unfair.

7) Final Decisions, Notice And Payments

Once consultation closes and you’ve offered any suitable roles, you can confirm outcomes. Provide a clear outcome letter, set out notice, redundancy pay and any holiday pay. Keep careful records of the process and rationale.

If you’re unsure about thresholds, selection criteria or documentation, consider getting tailored Redundancy Advice to stress-test your approach before you move to dismissal.

Suitable Alternative Vacancies: What Counts And How To Offer Them

This is the area most likely to trip employers up, especially with the extended protection period. Here’s how to think about “suitable” and “offering” in practice.

What Is “Suitable”?

Consider the package as a whole. A role is more likely to be “suitable” if:

• The pay, benefits and seniority are broadly comparable (or not substantially less favourable).
• Duties are suitable for the employee’s skills and experience, with reasonable training.
• The location and working pattern are reasonably workable (including flexibility if the old role had it).

There’s no expectation to invent roles. But if a role exists and is suitable, you must offer it to the protected employee ahead of others.

How To Offer It

• Timing: Offer the role before giving final notice of redundancy (or before the dismissal takes effect).
• Clarity: Set out the job title, main duties, salary, hours, location, start date and any training to be provided.
• No Competitive Process With Non-Protected Staff: The protected employee should not have to interview competitively against non-protected candidates for a suitable vacancy.
• Reasonable Time To Consider: Provide a fair window to accept; if declined, move to the next at-risk employee.

Document what was considered suitable (and why), what was offered, and the employee’s response. This paper trail is often decisive if the decision is later challenged.

Common Mistakes That Lead To Tribunal Claims

Even well-meaning employers can stumble on the details. Watch out for these pitfalls:

• Using attendance or recent output as a raw metric without adjusting for maternity leave, which can amount to indirect discrimination.
• Failing to check for suitable alternative vacancies across the group, not just the immediate team.
• Running a “competitive interview” for a suitable vacancy that the protected employee should have been offered.
• Not consulting because the employee is on leave, or leaving them out of key communications.
• Assuming you can select a pregnant employee or recent returner because their role is “easier to cover” or because of childcare needs-both are risky, discriminatory assumptions.
• Relying on informal notes rather than a consistent scoring matrix and a clear, auditable process.

When claims do arise, tribunals will examine your process step by step. A robust record, objective criteria and evidence that you offered suitable vacancies go a long way. If you need a sense-check before decisions are final, our team can help you structure a fair process and documentation pack in line with UK law and best practice.

Redundancy Pay, Notice And Benefits During And After Maternity Leave

Your obligations around pay and notice don’t disappear because someone is pregnant or has returned from maternity leave. Key points:

• Statutory Redundancy Pay: If the employee has two years’ continuous service, they’ll usually qualify for statutory redundancy pay based on age, length of service and weekly pay (subject to caps).
• Contractual or Enhanced Terms: If you offer enhanced packages, ensure consistency and avoid discriminatory differences between those who have taken maternity leave and those who haven’t. Our guide on enhanced redundancy pay outlines when extra compensation may apply.
• Statutory Maternity Pay (SMP): SMP continues if redundancy happens during maternity leave, subject to eligibility. You must not dismiss to avoid paying SMP.
• Notice: Provide statutory or contractual notice (whichever is greater). Pay in lieu is permitted if your contract allows it.
• Holiday Pay: Accrued statutory holiday continues to build during maternity leave and must be paid or taken.

It’s also worth being clear on terminology and obligations-“severance” isn’t a legal term in UK law, and what you owe will turn on redundancy rules and the employment contract. If you’re weighing settlement offers or ex gratia payments, see severance vs redundancy for a plain-English breakdown.

Finally, when redundancies are unavoidable, make sure your process lines up with fairness requirements from start to finish. This checklist on ending an employment contract fairly covers the practical steps employers should follow.

Practical Documents And Policies To Put In Place

The best way to keep redundancy processes fair and defensible is to set your legal foundations early. A few key tools make a big difference:

• Employment Contract: Clear terms around duties, place of work, mobility clauses, redundancy pay (if enhanced) and pay in lieu can make restructures smoother.
• Staff Handbook: Include policies on redundancy consultation, family leave, flexible working and equality. Managers should have a consistent playbook before any restructure starts.
• Workplace Policy suite: Equality, anti-discrimination and selection/appointment policies help demonstrate your objective approach and reduce bias in scoring or interviews.
• Process Templates: Selection matrix, consultation letters, outcome letters and a vacancy-check log. These don’t replace judgment, but they keep your process consistent.
• Training For Managers: Line managers need to understand the extended priority period after maternity leave and how to identify “suitable” roles.

A small upfront investment in documentation and training reduces the likelihood of disputes later-and if a claim does arise, it gives you the evidence you need to defend your decisions.

Frequently Asked Questions From Employers

Can We Include A Pregnant Employee In A Redundancy Pool?

Yes, if the redundancy is genuine and your selection criteria are objective and non-discriminatory. But once you identify a suitable alternative vacancy, the protected employee must be offered it ahead of others during the protected period.

What If There’s Only One Suitable Vacancy For Multiple People?

If multiple protected employees qualify for one suitable role, you can use fair, objective criteria between those protected candidates. What you cannot do is ask them to compete with non-protected employees for the same suitable vacancy.

Does Priority Continue After They Return From Maternity Leave?

Yes. Since April 2024, protection extends beyond the return date-typically up to 18 months from the child’s date of birth. This is a key change that catches many employers out when considering redundancy after maternity leave.

What If The Employee Declines A Suitable Role?

If a protected employee reasonably declines a genuinely suitable role, you can proceed with redundancy in the normal way. Make sure the offer was clearly documented, reasonable and timely-tribunals scrutinise this closely.

Do We Need To Create A Role To Avoid Redundancy?

No. You’re not required to create roles. But you must proactively look for existing suitable vacancies within the business (and group, if applicable) and offer them during the protected period.

Key Takeaways

• Redundancy protection maternity is about non-discrimination and giving priority access to suitable alternative vacancies during pregnancy, maternity leave and the extended period after return.
• From 6 April 2024, the protected period extends beyond maternity leave-typically until 18 months after birth-so keep this in mind when planning redundancy after maternity leave.
• Run a structured process: genuine business case, objective selection criteria (adjusted for leave), meaningful consultation and thorough vacancy checks.
• If a suitable alternative vacancy exists, offer it to the protected employee ahead of others and before the dismissal takes effect.
• Get your foundations in place: a clear Employment Contract, a robust Staff Handbook and consistent Workplace Policies make lawful redundancies more straightforward.
• Be precise about pay and notice-understand statutory redundancy pay, any enhanced terms, and how SMP interacts with redundancy. If you’re weighing packages, see the difference between severance vs redundancy and when enhanced redundancy pay applies.
• If in doubt, get tailored Redundancy Advice before confirming outcomes-small tweaks to your process can significantly reduce risk.

If you’d like help navigating redundancy protection during pregnancy and maternity for your business, you can reach us on 08081347754 or team@sprintlaw.co.uk for a free, no-obligations chat.