By Sara Ellison and Katie Ash Employment Lawyers for Banner Jones Solicitors
Being on maternity leave and enjoying the time with your new baby is precious, however, whilst you are away from your job businesses often change and not always for the better. If your employer proposes to make you redundant whilst you are on maternity leave, then you’ll want to know what your rights are.
The law sets out the situations in which a redundancy can arise, but even if the situation you are facing falls within the legal definition of a redundancy, the law still requires your employer to adopt a fair and reasonable procedure, which includes a fair selection process and meaningful consultation at an early stage.
In addition, and often overlooked by employers, is the fact that if a redundancy situation arises during your maternity leave, and it isn’t therefore practicable for you to return to your existing role, you are entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after your existing contract ends in preference to any other employee who is at risk of redundancy alongside you.
This gives the employee on maternity leave priority over any other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination. If your employer doesn’t comply with this requirement, you will have a claim for automatically unfair dismissal.
This right isn’t triggered until you have been selected for redundancy. If you are still on maternity leave it does not, therefore, give you the right to be automatically retained and kept out of the pool for selection for redundancy. However, once you are placed at risk of redundancy whilst on maternity leave, then the right to preferential treatment, and the right to be offered a suitable alternative vacancy in preference to other employees arises. This should include vacancies with any associated employers, such as other companies within the same group of companies.
If there is no suitable alternative vacancy, then the normal rules on undertaking a fair selection process for redundancy will apply.