Redundancy while on maternity leave

02 July 2020

Making redundancies is difficult at any time for your business. But if employees up for selection in the redundancy process are pregnant or on maternity leave, it can prove a daunting task.

Maternity leave and redundancy are two areas where employers frequently trip up. So you can call us on 1890 252 923 if you need immediate support.

If you’re considering this situation due to coronavirus, remember that this is a last resort. There are other options available to you.

However, if you must go ahead then we explain the Irish employment laws and processes you must follow.

Irish laws for maternity leave and redundancies

In Ireland, the law is clear. An employee mustn't have their employment terminated while they're on maternity leave. In addition, employees who are on maternity leave must not even be served with notice of termination.

Simply put, a redundancy while on maternity leave is against the law. You can’t terminate an employee’s contract of employment during a period of maternity leave or any additional amounts.

It's known as a period of "protected leave", during which the employee’s employment must not be terminated. You can only dismiss an employee when they return to work after their maternity leave has expired—or before a period of it begins.

If the employee is pregnant when you serve a notice of termination, and the notice period doesn't expire before the employee’s period of maternity leave begins, the notice period will be extended by the length of the employee’s maternity leave.

Either way, you must take a fair and thorough approach to redundancy and maternity leave in Ireland. You risk suffering unfair dismissal and discrimination claims if you don’t comply with employment law.

If, for example, the coronavirus pandemic has affected your business and you need to make redundancies, then you must ensure the redundancy process is carried out properly and employees on maternity leave are handled appropriately.

However, dismissing an employee due to their pregnancy or maternity leave is grounds for an unfair dismissal claim and discriminatory under employment equality legislation.

And that could result in a very costly claim in the Workplace Relations Commission.

Redundancies before or after maternity leave

So, as we outline in the section above, you can't progress a redundancy process during a period of maternity leave. The only time a redundancy procedure can run is after, or before, the employee starts or finishes their period of protected maternity leave away from your business.

Below, we have a summary of what your business must do in both circumstances:

  • Being made redundant after maternity leave: You must have a genuine reason to dismiss the employee. And it shouldn’t be directly, or indirectly, due to their pregnancy or need to take leave. You must evaluate the employee’s contributions to your business fairly and consider alternative roles they can take. For more on the five genuine ground for redundancy, see our redundancy guide.
  • Redundancy before maternity leave: As above. You must follow the same redundancy procedure and consider alternative options.

Ultimately, you have to follow a fair process and justify your decisions.

The employee can appeal at a later date. But if you document your processes throughout, then you can present your reasoning (along with additional evidence) to support your decision and defend any claim an employee may raise.

Voluntary redundancy while on maternity leave

If you want to find volunteers for redundancy, then typically you'll need to put a redundancy package together.

With the voluntary approach, you can provide an incentive through a better severance package. Which may appeal to some employees.

Even if employees on maternity leave (or who are about to go on maternity leave) accept a voluntary redundancy package, they mustn't be made redundant during their period of maternity leave.

Moreover, if a notice period under a redundancy process doesn’t expire before the employee has begun their maternity leave, the notice period is extended by the period of absence under the employee’s maternity leave.

Overview of maternity pay and redundancy

Contractual maternity pay and redundancy tend to intersect when a severance package is being ironed out.

Some employers have a contractual maternity pay clause but as paying employees while they are on maternity leave is completely discretionary, it's by no means widespread.

As there's no statutory right to maternity pay if made redundant, so long as your termination payment complies with the statutory minimums under redundancy legislation, there's no obligation to include contractual maternity pay in redundancy calculations.

Redundancy notice period on maternity leave

An employee’s notice entitlement depends on the amount of time they have been with your business. If no contractual notice periods apply, staff are entitled to the minimum notice periods set out in the Minimum Notice and Terms of Employment Act, 1973 set out below:

  • Between two to five years: Two weeks
  • Between five-ten years: Four weeks
  • Between ten and fifteen years: Six weeks
  • Over fifteen years: Eight weeks

As mentioned above, if a notice period under a redundancy process doesn’t expire before the employee has begun their maternity leave, the notice period is extended by the period of absence under the employee’s maternity leave.

Caution advised

If an employee is on maternity leave, redundancy simply isn’t an option.

As above, you’ll need to wait for them to return to your business before you can issue any further steps.

Need more help?

If you need assistance with dismissing an employee—or considering alternative options—we can help your business. Get in touch for support: 1890 252 923.

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