Q. We’re about to commence a restructuring exercise. Several employees who are pregnant or on maternity leave are among the redundancy pool. Is there anything in particular we should be aware of in relation to them?
Remember that your selection criteria should be objective, non-discriminatory and fairly applied. For example, if you plan to use absence records, you should disregard any maternity-related absence. And be aware that it is automatically unfair to select an employee for redundancy because she is pregnant, has given birth or has exercised her statutory maternity rights.
There must be a genuine redundancy situation and you need to have carried out a fair procedure. Furthermore, you must take reasonable steps to find alternative employment for any employee facing redundancy. If you don’t, this could make the dismissal unfair.
However, in the case of an employee on maternity leave, your obligations go further than this. You are under a statutory obligation to offer her any suitable alternative vacancy that exists. The new work must be suitable in relation to the employee and appropriate for her to do in the circumstances, and the new contract provisions must not be substantially less favourable than those of the previous contract.
An employee who is pregnant but has not yet gone on maternity leave would not be entitled to this preferential treatment. You’ll be under an obligation to look for suitable alternative employment for her, but you will not be under the strict obligation to offer her any suitable alternative vacancy that exists even if she is not the best candidate.
Employers need to consult individually with employees affected by proposed redundancies before making a final decision. And employers carrying out 20 or more redundancies at one establishment within a period of 90 days or less also have to consult collectively with union representatives or elected employee representatives.
It’s important that you don’t forget about the employees on maternity leave. You should give them information about the proposed redundancies in the same way and at the same time as other employees, so far as practicable, and involve them in the consultation process. Obviously this might cause practical difficulties in the case of an employee who has recently given birth, but you should attempt to involve her. This may involve rearranging meetings or conducting them at the employee's home.
For those made redundant on or before maternity leave, an employee will qualify for statutory maternity pay if she has 26 weeks’ continuous employment by the 15th week before the expected week of childbirth, and earns at least the lower earnings limit for national insurance purposes. Once she has qualified for statutory maternity pay she will be eligible to be paid it for the full 39-week period, even if she is made redundant before her maternity leave starts.
So, assuming she has two years’ service you will have to pay statutory redundancy pay to an employee on maternity leave who is redundant. When calculating her payment, which is based on her age, salary and length of service, you should use her normal week's pay, not a week in which she received maternity pay or no pay.
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