First and foremost, employers must exercise caution when making an employee who is pregnant or on maternity leave redundant, and ensure that fair and proper procedure is followed.

Statutory maternity pay (‘SMP’) is available to a woman who is or has been an employee under section 160 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. Therefore, provided that the employee qualified for SMP prior to the redundancy situation arising, her right to receive SMP continues post-termination and for the remainder of the SMP period, For the avoidance of doubt, the SMP period is a maximum of 39 weeks with the first six weeks being paid at 90% of average earnings and the remaining 33 weeks at a rate of £145.18 per week.

However, should the former employee commence employment with a new employer during the SMP period, the former employer’s SMP obligations will cease. The former employer (who has been paying SMP) must give the employee form SMP1 which explains why SMP has been stopped.

SMP can be paid in full (by a lump sum payment) on termination, provided that the rules relating to payment of National Insurance contributions are adhered to. This can be advantageous from a practical perspective, particularly if the employer’s whole site has closed, because the former employee will not have to remain on payroll. However, it also has a financial disadvantage as the former employee could obtain new employment but still benefit from full SMP.

It should also be noted that if the employee is given pay in lieu of notice, SMP can be off-set against notice pay pursuant to Article 120 of the Employment Rights (Northern Ireland) Order 1996.

Redundancy and maternity related rights are complex areas, particularly when they overlap. Therefore, we recommend that you seek specific legal advice if you are faced with a redundancy situation.