Can an employee on maternity leave be made redundant?

If a redundancy situation arises and the post-holder is on maternity leave, can they be made redundant?

Seamus: So, yes, you can make someone redundant that's on maternity leave. But if you're making that person redundant because they're pregnant or they're on maternity leave, then that will be discrimination. It'll be unlawful.

So how do you go about making a person on maternity leave redundant, I suppose, is the question then? What you need is that you're going to have a genuine redundancy situation that you haven't artificially, you know, engineered this redundancy. And that comes about with your usual . . . your financial problems, you need to cut staff, or reorganisation of the company.

Even though that employee is maybe out of the office on maternity leave, you need to consult fully with that employee. You might find that that employees happy to come into the office for meetings. They could use it as their keeping-in-touch days to come in. However, if they aren't, you could go to their house and discuss it with them or maybe a telephone call, but they need to be fully consulted as to what the situation is that's going on here.

And I think the next point that is quite important is how you're choosing the people for redundancy. You need to ensure that your selection process or your matrix that you're using isn't disadvantaging someone that's on maternity leave.

Scott: Yes. So you're not going to take into account absences. It's maternity leave.

Seamus: Yes, exactly. For example, they haven't met their targets and they've been off on maternity leave. How could they? They weren't there. So maybe what you have to do there is go back to their previous year and see if they were meeting their targets before that.

And then, as with all redundancies, you have to look at alternatives. And, you know, it's a suitable alternative position that would be available, and the person that's pregnant or on maternity leave will get first choice as to, first of all, the alternatives that are there.

Scott: So it's very difficult, really. Like you say, it can happen. In reality, it's difficult for two reasons. One, because they've got the right to go back to the same job ordinarily if they're in the first [period 00:11:49]. And they've got the right to go to something which is not substantially different. So they would come quite high in the pecking order there.

You've also got the situation that on the face of it, if there's really only one redundancy or one or two redundancies and it's the maternity one that goes, it looks like sex discrimination. So the employer has to be doubly careful.

Seamus: Need to have everything sorted before you're going to make that move.

Scott: So the real answer, don't do it.

Seamus: If you want to do it, make sure you've got everything recorded. You've got your reasons why you're doing it, and you've gone through it meticulously.

Certainly, in past experience, you would be very concerned about a sudden redundancy that would arise for somebody that is on maternity leave. And often, you get circumstances where somebody goes out of their place of work for a period of time, and all of a sudden, the employer thinks, "Well, you know, I didn't bring anybody in to do that job. And I could really do without this role because while this person has been absent another employee has been able to pick up the work".

Those circumstances can arise and you just need to be very careful specifically if you're picking out the one role and it just so happens that that person is on maternity leave.

I think it's easier to do whenever there is a group of redundancies and people are being pooled together as a result of their possessions. You can satisfy the test much easier there in those circumstances where you're saying, "This is a genuine redundancy".

My view would be I think that you would always approach any sort of a redundancy while someone is maternity leave with caution. And ultimately, you may want to look at trying to compromise the circumstances, whether that's with the assistance of the Labour Relations Agency or whether it's fair compromise agreement itself. But I always tend to take the cautious route with everything.

I think the other point on it is also, you know, actually making redundancies. When a company is trying to figure out, "What can we do to help just to avoid this situation?" essentially, if anyone that's on a fixed-term contract that's on maternity leave or pregnant and you decide, "Oh, well, we'll just get rid of that. That will be cutting a cost. We'll get rid of that person at the of the fixed-term contract", if the reason that you're getting rid of that person is because they're pregnant or on maternity leave, then you're going to be in the same situation and there's discrimination there.

Scott: There's any number of cases come up and tribunals north and south of the border. You see them all the time where women on maternity leave get dismissed. Quite a lot, it's because the replacement turns out to be better than the one that was there.

Seamus: Yes, it could happen.

Scott: This had nothing to do about the pure performance, if you like, of the woman who went off before she went on maternity leave. And so, you get somebody else that comes in and highlights maybe an issue there. And it just looks like sex discrimination, and it's found to be sex discrimination 9 times out of 10. So it's a very dangerous thing to do.

Seamus: I mean, the antenna of any tribunal panel is going to be up immediately. And they're going to be looking to . . . I think there's almost an extra layer that's put on to the employer to really justify that the situation whenever you end up in a tribunal case with it.

Scott: Thank you. You're listening to Seamus McGranaghan from O'Reilly Stewart. I'm Scott Alexander. I assume we've had a question in there about GDPR. We have a couple of redundancy questions first, and then we'll get down to GDPR because we have a few GDPR questions coming in. But if you do have any questions, please send them in.