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. It has also been updated to take account of The Protection from Redundancy (Pregnancy and Family Leave) Act 2023. This Act extends the rights of pregnant women and other new parents who are facing redundancy and was brought into law on 6th April 2024.

See also our post about how this new legislation enhances new parents’ redundancy rights more widely and also our related guides 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. 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.

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.

Additionally, the 2024 Protection from Redundancy (Pregnancy and Family Leave) legislation referred to earlier means that, if you’ve taken maternity leave ending on or after 6 April 2024, then you will have priority for suitable alternative employment for 6 months after the end of your maternity leave period.

 

Pregnancy and priority for alternative positions

If you are pregnant, identified as redundant and your employer is considering alternative positions, priority is now (from 6th April 2024) given to you, as well as to employees who have started maternity leave.

This priority right extends from the point of notification of your pregnancy, and lasts until 18 months after the child’s birth. It should be implemented by your employer in much the same way as it is for women on maternity leave (as above).

 

New laws on redundancy and pregnancy

In summary, the priority treatment that was afforded to women on maternity leave prior to April 2024, did not extend to pregnant employees who hadn’t yet started their maternity leave.

However, this changed when The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 was brought into law on 6th April 2024. Now, pregnant women are entitled to the same priority treatment as women on maternity leave.

For more details about the Act and the wider groups of new parents who have had their rights improved when facing redundancy, see our post on New parents’ redundancy rights enhanced.