Our Advice Service is available 24 hours a day, every day, to assist you with this process and ensure that what you do is reasonable. There is guidance available on the selection process and our Advice Service Consultants can discuss with you what you need to do at each stage and help you reach your decision. We’re only a phone call away so please call on 0844 892 2772 and let us help you through this process.
Redundancy is a very difficult situation and it is further complicated when the person being made redundant, either voluntarily or compulsorily, is on maternity leave. These situations can be very complex and highly volatile so it is important to seek advice to make sure that you are acting properly and not falling foul of any legislation and accidentally discriminating against someone for reasons relating to pregnancy.
Pregnant women and women on maternity leave can be made redundant lawfully and fairly as long as the reason for their selection is not connected to their pregnancy. In the event that an employee who is currently receiving, or is due to receive, maternity pay is made redundant then you need to ensure that the situation regarding their entitlement to maternity pay is clearly identified and explained.
A woman is entitled to statutory maternity pay if she has been employed by the same employer for at least 26 weeks into the 15th week before the expected week of confinement and earns above the lower earning limit. If your employee meets those rules then they remain entitled to maternity pay even if their employment subsequently ends for reasons of redundancy. An employer only ceases being liable for maternity pay if the woman starts working for a new employer after the maternity period has started.
If you are discussing voluntary redundancy with a woman who will have reached the eligibility criteria at the time her employment terminates then it is important that you take into account her statutory maternity entitlement as part of any calculations of severance packages. Under no circumstances should you rush through the dismissal of a pregnant woman to avoid incurring the risks of this being challenged on discriminatory grounds.
If you are entering a redundancy situation where one of the employees who would be affected by the redundancy is currently on maternity leave then it is essential that you keep them fully informed and involved in the consultation process.
When discussing enhanced redundancy packages for voluntary redundancy make sure you set out the entitlement to maternity pay. However, what you can discuss with the employee is the option of paying the SMP in a lump sum, rather than it needing to paid out weekly. In this way the employee still receives the full amount of SMP but has it right at the beginning of their maternity leave period which will make it easier for them to buy any clothes and nursery equipment they need for the baby. Make sure that you take careful and detailed minutes of these consultation meetings to ensure that there can be no misunderstandings later as to what was discussed.
If a redundancy will result in the womans employment terminating before the 15th week before the expected week of confinement then make sure that you clearly identify to the woman that if her employment is terminated then she would not be entitled to SMP but may be entitled to Maternity Allowance. This shows that you are not trying to hide the fact that you will not have to pay SMP but also identifies to the woman that she will still be able to obtain payment during her maternity period so she wont miss out entirely.
If you find yourself in these circumstances what you may want to do in order to make voluntary redundancy more attractive, as well as showing that you are not trying to avoid your responsibilities to pay SMP, is to offer to include in the redundancy package an amount that will compensate for the difference between SMP for the first 6 weeks that is set at 90% of salary and the amount of the Maternity Allowance figure. In this way your employee will suffer no actual loss if she takes voluntary redundancy which will again make it more attractive.
You need to give careful consideration to any contractual rights and benefits during maternity leave that are available in addition to SMP. Make sure that you give due consideration to compensating for any actual loss to ensure that you are leaving yourself open to allegations that you have created, or manipulated, the redundancy in order to avoid your obligations to a woman on maternity leave.
Remember, our Advice Service is available 24 hours a day, every day, to assist you with this process and ensure that what you do is reasonable. There is guidance available on the selection process and our Advice Service Consultants can discuss with you what you need to do at each stage and help you reach your decision. We’re only a phone call away so please call on 0844 892 2772 and let us help you through this process.