Occasionally, employers will find themselves in a difficult position where a redundancy scenario arises and it becomes impracticable for the employer to continue to employ an employee who is currently on maternity leave.

When such a situation arises, the employer is required to offer the employee any suitable vacancy that exists whether this be with the employer, their successor or an associated employer, under a new contract of employment.

Strictly speaking, there is nothing within the relevant legislation to suggest that this offer must be made in writing and thus it would be legal for an employer to make such an offer verbally. However, due to the sensitive and complex nature of the scenario (and the potential for maternity discrimination concerns to arise) it is best practice for employers to make this offer in writing for their own records.

Employers must ensure that the new contract of employment concerns work which is suitable for the employee to carry out in the context of their circumstances and that the general terms of employment (including the capacity and place of employment) are not substantially less favourable to the employee in comparison to those under their previous contract.

If an employer is found to have failed to comply with these requirements and dismisses the employee, this dismissal will be considered to be unfair. Furthermore, the employee may have a claim for sex discrimination.

However, if the employer legitimately has no suitable alternative work to offer the employee, her dismissal may be fair despite the fact she is on maternity leave. If an employer decided to make an employee redundant whilst they are on maternity leave, they must provide the employee with a written statement explaining the reasons for their decision.

In such situations, it is important that employers seek independent legal advice before making any decisions to dismiss employees on maternity leave, in order to avoid claims being brought against them.