“As a result of the cost-of-living crisis our business is suffering financially, we are therefore intending to downsize and reduce operations. We are proposing to make a number of redundancies, this potentially includes an employee who is off on maternity leave, how should we handle this?”

Redundancy is a fair reason for dismissal and is often used to describe circumstances where an employer proposes to reduce the number of its employees for a variety of reasons which might include; economic pressure, business restructure, relocation or changes in products or services provided. While the law does not prevent an employer making redundancies, there are prerequisites to ensure redundancies are lawful, such as genuine grounds for redundancy, together with the use of fair selection criteria (as objective as possible) and a transparent redundancy process. You should take care to ensure that any criterion used is non-discriminatory in nature and does not unfairly disadvantage an employee in connection with being on maternity leave. For example, absence due to pregnancy should not be taken into account when scoring employees on attendance.

While there is no statutory process for redundancy which affects less than 20 employees, if you have a specific redundancy policy, you should ensure this is followed throughout the process.

As a starting point, you should remember that you must consult with employees in advance of any notice being given. In the event you intend to make 20 or more employees redundant at one site, the consultation period should last at least 30 days and you should consult with employee representatives. The consultation period should continue until any issues have been resolved and employees fully informed and you should take steps to ensure absent employees (including those on maternity leave) can fully participate in the redundancy exercise. In general terms, you should ensure the employee on maternity leave is kept updated on the redundancy process and remains actively involved in the consultation. You should consider adjustments where required, i.e. meet with the employee at their home, consult by video/telephone call and engage in consistent written correspondence. Failure to properly consult with any employee, particularly one on maternity leave, could result in claims of unfair dismissal and/or discrimination.

In any redundancy scenario it is imperative the above points are considered to avoid allegations of a sham or unfair redundancy selection and thereby mitigate risk of any claims for unfair dismissal and/or discrimination.

If you are considering making the absent employee’s role redundant purely on the basis she is on maternity leave, this dismissal would be automatically unfair and you would be putting the business at risk of a claim for unfair dismissal, as well as sex discrimination.

You should also be aware that under Regulation 10 of the Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999, enhanced protection is afforded to employees on maternity leave. This legislation gives the employee priority over other employees (also at risk of redundancy) and is a rare example of lawful positive discrimination. You should take care not to inadvertently discriminate against male employees as demonstrated in the case of Eversheds Legal Services Ltd v De Belin. It was held in this case that those employees on maternity leave should only be treated more favourably than male colleagues to the extent that this is reasonably necessary to remove the disadvantages occasioned by their condition.

A woman on maternity leave has the right to return to the same job before she left so, if it is confirmed the employee’s current role is redundant and it is not possible to continue to employ her under the existing contract, as per Regulation 10, she is entitled to be offered a suitable, alternative vacancy within the business (if one is available). The employee must be given priority before other potentially redundant employees and does not need to formally apply for the vacancy.

When considering alternative vacancies you should ensure that:

• The alternative role starts immediately following the end of the employee’s current contract.
• The role/work is suitable and appropriate for the employee in the circumstances.
• The terms and conditions of the alternative vacancy are not substantially less favourable than if she continued to work under the previous contract (i.e. capacity, salary, place of employment etc.).

You should also take into account the effect redundancy will have on the employee’s Statutory Maternity Pay (SMP). If the employee is dismissed by reason of redundancy, you must continue to pay her SMP for the remainder of the SMP period, as her SMP entitlement, once triggered after the Qualifying Week (the 15th week before the week the baby is due) is not dependent on remaining your employee.

There is a lot to consider in any redundancy process, including fair selection criteria, the statutory dismissal process and appeals, but particularly so when pregnant employees or those on maternity leave are at risk of redundancy. You should therefore ensure you take the necessary steps to ensure the process is fair.