Redundancy selection during pregnancy

This guide draws on the case of a pregnant client who had informed her employer of her pregnancy and had since been selected for redundancy. She hadn’t yet begun maternity leave.

A friend had told her that, because she was pregnant, she should be given priority over other employees facing redundancy, when a suitable alternative vacancy was offered. She wanted to know more about her rights in the circumstances and also if her friend was right.

The guide is based on a response by one of our senior employment solicitors whose specialisms include redundancy and pregnancy/ maternity discrimination.

For further information, see our other guides and particularly those on redundancy, redundancy selection, discrimination, pregnancy and maternity discrimination.

 

Laws protecting pregnant women during redundancy

There are several legislative provisions to protect you if you are pregnant and facing redundancy, although it does remain a developing area of law (see below). The main provisions are contained in the Equality Act 2010.

Your protected period under the Equality Act is the period that starts when your pregnancy begins and ends:

• if you have the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when you return to work after the pregnancy; or
• if you do not have that right, at the end of the period of two weeks beginning with the end of the pregnancy.

If your selection for redundancy is connected to your pregnancy, such selection is regarded as being ‘automatically unfair’ (see unfair dismissal for more) and also discriminatory. You do not need any minimum qualifying period of employment to pursue this complaint.

 

 

Selection criteria in redundancies

When your employer is considering which roles and role-holders to make redundant, they should be drawing up lists of ‘selection criteria’. These criteria are essentially measurements of employees’ skills, experience, personal attributes, qualifications, etc.

Ideally, an employee should be offered an opportunity to challenge or make suggestions to the selection criteria to be applied, as this forms part of meaningful consultation that’s required as part of a redundancy process.

Each employee at potential risk of redundancy will be assessed and scored against such a list of selection criteria. Typically, people with the lowest scores against each of the criteria will be the first to be selected for the ‘redundancy pool’ or group of people who are considered to be most at risk of redundancy.

Any criteria applied should be reasonable, objective and capable of independent verification. Potentially fair selection criteria could include individual skills and qualifications, length of service, attendance, customer feedback and disciplinary records.

Redundancy selection criteria + pregnant women

In applying redundancy selection criteria to pregnant women, any absence for pregnancy-related illness, maternity, or other family-friendly leave should be discounted. Any performance assessments during a period when you were suffering from pregnancy-related sickness or targets measured during a period when your work was affected by pregnancy, should be avoided.

Selection criteria that have an indirectly discriminatory effect are also likely to make dismissals unfair if your employer is unable to demonstrate what’s called an ‘objective justification’ for the adoption of such criteria. (See our guide on Age Discrimination for more about objective justification.)

 

Offer of alternative role to avoid redundancy

One of the things your employer must do during a redundancy process is to offer any individual at risk of redundancy a suitable alternative role, if such a role exists.

In determining whether an alternative role is suitable, it must be no worse than your previous role with regard to location, terms, conditions, and status. If a role is deemed suitable and you refuse it, you could lose your entitlement to a redundancy payment.

Pregnancy and priority for alternative positions

If you are pregnant, identified as redundant and your employer is considering alternative positions, priority is only given to employees on maternity leave. As yet this priority right does not extend from the point of notification of your pregnancy.

Maternity leave and priority for alternative positions

If you have commenced maternity leave when the redundancy arises, you have an absolute right to be offered any available suitable alternative vacancy, without having to apply for it and usually without being required to undertake a competitive assessment/interview process.

That means your employer must offer you a suitable alternative vacancy where one is available – to include vacancies with any associated employer. It is irrelevant that other employees who have also been selected for redundancy may be better qualified for the vacancy.

In these circumstances, you would have priority over other employees who are also at risk of redundancy.

In summary

When you are on maternity leave, the above entitlement to priority treatment is an unusual example of positive discrimination. However, it does not currently extend to pregnant employees who have not yet commenced maternity leave.

Therefore, if you’re pregnant but haven’t yet started your maternity leave, you are unfortunately not entitled to priority for alternative roles.

 

Update: laws on redundancy and pregnancy

We hope that the policy which excludes pregnant women from being given priority for alternative positions in redundancy will change in the near future.  A Bill called The Protection from Redundancy (Pregnancy and Family Leave) Bill is nearly at the end of its journey through Parliament before becoming law.

One of the main proposals in the Bill is to extend the protection offered to pregnant women and those who are returning from maternity leave. The protection would be lengthened to apply from the date an employee notifies their employer in writing of pregnancy, to six months after return from maternity leave.

The discussions underway also ask whether this protection should be extended to similar types of leave such as adoption leave and shared parental leave. No additional protection is recommended for those taking or returning from paternity leave.

At the time of writing (April 2023), the Bill was in its third reading before progressing to its Final Stages and being given Royal Assent, Watch this space for updates!