31 May 2018
You are able to make an employee on maternity leave redundant so long as the reason for redundancy is not the employee’s pregnancy, or any other maternity-related reason.
Before making a redundancy, make sure it is absolutely necessary to do so, and that there aren’t better options. If there aren’t any other options, or redundancy proves to be the best course of action, there are several steps you should take. Prove that there is no longer a role for that employee to fill if they were to return to work, and that you have made every possible effort to find her another suitable role within the business, including offering her another role before you offer it to anyone else. Discovery that an employee’s work can be managed by another employee, or that you are able to manage without that employee, will not be considered a valid excuse for redundancy. It is important that the employee is not left unaware of any developments at work, and that if asked to attend a meeting, suitable arrangements are made for her to attend. Not conveying the appropriate information, even for genuine compassionate reasons, could be construed as discrimination if not handled correctly. The Equality Act 2010 directly prevents discrimination, and unfair dismissal, due to pregnancy. So, if handled incorrectly, making an employee redundant while she is on maternity leave can constitute discrimination and unfair dismissal. This, in turn, can lead to a claim against you and potential for escalation to an employment tribunal. If an employee is made redundant prior to going on maternity leave she will still be entitled to the full duration of statutory maternity pay (SMP), unless she was made redundant prior to the 15th week before the baby is due. If the redundant employee chooses to appeal against the decision, make sure this is dealt with in a fair and transparent way. Make sure the appeal is taken seriously, and involve a more senior manager. Treating an appeal with compassion and the empathy it deserves will mean the complaint is more likely to stay local than escalate to a tribunal scenario. Making an employee redundant whilst on maternity leave is not unlawful so long as the process is handled fairly and with transparency. Failure to communicate, or treat the issue with the respect it deserves is likely to result in issues, and potentially an expensive employment tribunal.
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