Redundancy During Maternity Leave: Pregnancy and Maternity Rights

Pregnancy and maternity leave are key areas of protection under UK employment law. Yet many employers, and even some employees, still misunderstand or overlook the legal obligations and rights that apply.

In this article, we outline the core protections around pregnancy rights at work, maternity leave rights and redundancy during maternity leave, with a particular focus on redundancy, returning to work and dismissal risks.

Under the Equality Act 2010, pregnancy and maternity are protected characteristics. This means that any unfavourable treatment related to pregnancy or maternity leave can amount to pregnancy discrimination or maternity discrimination, regardless of how long the employee has been employed.

Common examples of pregnancy and maternity discrimination may include:

Importantly, protection starts once the employee informs the employer of their pregnancy and continues through the protected period.

Employees on maternity leave have long had the right to be offered suitable alternative employment in a redundancy situation, where such a role exists. This gives them priority over other employees who are also at risk of redundancy.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extended this protection. The enhanced protection can now cover:

This is a significant development in pregnancy employment law and means employers must be particularly careful when managing redundancy while pregnant, redundancy on maternity leave or redundancy shortly after an employee returns to work.

Failure to offer a suitable alternative role, where one is available, may render a subsequent dismissal automatically unfair and discriminatory.

Yes, an employee can be made redundant while on maternity leave, but only where there is a genuine redundancy situation and the process is fair.

Maternity leave must not be the reason for the redundancy. Employers must also ensure that employees on maternity leave are not disadvantaged by the process, for example by being excluded from consultation or scored unfairly because of maternity-related absence.

A fair maternity leave redundancy process should include:

Employers should carefully document the redundancy process maternity leave decisions, particularly where several employees are affected.

One of the most important maternity redundancy rights is the right to be offered suitable alternative employment where such a vacancy exists.

This is not simply a right to apply or be considered. Where the statutory protection applies, the employee should be offered the suitable alternative role in priority to other employees at risk of redundancy.

For employers, this means it is essential to identify whether any suitable roles exist before confirming a dismissal. Failure to do so can create significant legal risk.

Employees also have important rights when returning from maternity leave.

After Ordinary Maternity Leave, which is the first 26 weeks, employees are generally entitled to return to the same job they had before their leave.

After Additional Maternity Leave, which covers weeks 27 to 52, a different role can only be offered if it is not reasonably practicable for the employee to return to the original role. Even then, the alternative role must be suitable and on no less favourable terms.

Returning employees should not be penalised, demoted or excluded from opportunities. A demotion after maternity leave, exclusion from work opportunities or unfavourable treatment on return may amount to unlawful detriment, maternity discrimination or, in serious cases, constructive dismissal.

There are five potentially fair reasons to dismiss an employee under UK law. Pregnancy and maternity leave are, of course, not among them.

A dismissal linked to pregnancy or maternity leave may be:

Importantly, employees do not need two years’ service to bring claims relating to automatically unfair dismissal because of pregnancy or maternity, or discrimination.

This means employers should take particular care before making decisions involving pregnancy dismissal, maternity leave dismissal, dismissal during maternity leave or dismissal shortly after an employee returns to work.

To reduce risk and promote fair treatment, employers should:

Returning from maternity leave can be a challenging transition. Clarity about what the employee is returning to, and how any changes affect them, is essential.

If in doubt, employers should seek legal advice early. Claims for unfair dismissal or pregnancy discrimination at work can be costly, not only financially but also in terms of reputation.

Understanding and complying with legal obligations is therefore not only a matter of law. It is a critical part of building a fair, supportive and inclusive workplace.

If you would like further guidance on maternity leave, redundancy or the legal protections in place for pregnant employees, please contact our Employment Law team.