Employees on maternity leave - Free guide to managing redundancies

If a redundancy situation arises during an employee’s ordinary or additional maternity leave which makes it impracticable for the employer to continue to employ her under her original contract of employment, she is entitled to be offered (before that contract ends) a suitable alternative vacancy, where one is available.

The new contract must take effect immediately on the ending of the original one and must be such that:

The work to be done by the employee is both suitable and appropriate for her to do in the circumstances; and
the capacity and place in which she is to be employed and the other terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract.

It is unlawful for an employer to make an employee redundant during ordinary or additional maternity leave period without first complying with these requirements.

If the employer has a suitable alternative vacancy available but fails to offer it to the employee, the redundancy dismissal will be regarded as an unfair dismissal.

If the employer offers the employee a suitable alternative vacancy and she unreasonably refuses it, she may forfeit her right to a redundancy payment.

Employers need to be very careful of the above requirements, the penalty for a finding of unfair dismissal in these circumstances can be very severe.