Pregnant Employees & Redundancy | What Every Employer Needs to Know

Navigating redundancy is never easy for any employer, and when you have pregnant employees in the mix, it can feel even more daunting. With the right approach, you can handle these situations fairly, legally, and with empathy.

First Things First: Redundancy Must Be Genuine

It is often a topic of discussion; can you make a pregnant employee redundant? It is a myth that you cannot make a pregnant employee redundant. You can, but only if it’s a genuine redundancy. A genuine reason for a redundancy exercise could be the role occupied is no longer required, the work carried out by the employee has reduced, the site which the employee works at is closing, or fewer people are required. Remember it is the role not the person that might be placed at risk of being redundant. Pregnancy cannot and must not be the reason. 

Special Protections for Pregnant Employees

Pregnant employees (and those on maternity leave) have extra legal protection. Since April 2024, the “protected period” for these employees starts as soon as an employee tells you they are pregnant and lasts for 18 months after the baby is born, which can incorporate maternity leave and sometimes a period in which the employee has returned to work.

The extra protection means that if redundancy is unavoidable during the protected period, an employer must offer any suitable alternative vacancies those employees first before anyone else. Whether an alternative is suitable will depend on:

• whether the duties are similar to the current role;
• if the pay, benefits and working hours are comparable;
• status and seniority within the organisation;
• location and ease of commute;
• roles which suit the employee’s skills, experience and qualifications;
• ability to perform the new role with or without training.

Selection Must Be Fair

When you are deciding who is at risk of redundancy, use objective criteria where possible focusing on skills, qualifications and measurable performance, rather than purely subjective criteria like “attitude” and "absences". Anything that could be influenced by maternity leave such as attendance or performance (as pregnant employees' performance and attendance might have been impacted by their pregnancy and/or maternity leave questioning their accuracy), should be used only if appropriate adjustments have been made to factor in any disadvantage suffered by the individual.

Consultation Is Key

Do not leave pregnant employees out of the loop. Often employers assume that the need to consult with those only applies to those who are visible within the workplace. Those on maternity leave have the right to be consulted about redundancy, just like everyone else. Therefore, make sure you:

• keep them informed, arrange several meetings to discuss the proposals, reasoning and any reasons connected to the proposed redundancy;
• give the employee sufficient time to consider the proposal/information to suitably respond.  Pregnant employees or those on maternity leave might need an adjusted process or more time to consider and respond to communications than those individuals who are not;
• properly consider their feedback and ensure you review all options to assess if there are any alternatives to redundancy. 

Being on maternity leave is not a reason to skip consultation. Ultimately, an employer can dismiss as redundant both pregnant employees and those on maternity leave if the reasons are genuine and have been properly considered. 

Below are some case law examples of situations where pregnant employees or employees on maternity leave sought recourse from the Employment Tribunal due to the mishandling by their employer of a redundancy: 

1. Mrs S Shipp v City Sprint UK Ltd (2021)

Mrs Shipp, a Marketing Director, was on maternity leave when her employer restructured the company. She was not consulted about changes, was offered a demoted role with lower pay, and was ultimately made redundant. The Employment Tribunal found that she had been discriminated against on the grounds of pregnancy and maternity, as she was treated less favourably than colleagues who were not on maternity leave due to the insufficient consultation and considerations to suitable alternative options being explored. 

2. Dobson v Michael Cook Law (2024)

Ms Dobson, a Conveyancing Solicitor, was made redundant shortly after disclosing her pregnancy. The Employment Tribunal found that she was the only person considered for redundancy, where the employer did not undertake a consultation or assessment of other staff which conducted the same role as Ms Dobson. The Tribunal concluded that Ms Dobson's pregnancy was a significant factor in her employers decision to terminate her employment by way of redundancy, as the employer had conducted themselves differently towards her colleagues. A decision was reached that there was no genuine redundancy situation concluding Ms Dobson had been discriminated against, awarding her compensation for pregnancy discrimination. 

3. Helen Larkin v Liz Earle Beauty Co Ltd

The Employment Tribunal held that failing to make a pregnant employee aware of a senior job vacancy before making her redundant was both unfair dismissal and pregnancy discrimination.

4. Carnival PLC v Hunter (2024, EAT)

This case clarified that while pregnant employees or those on maternity leave must be offered suitable alternative vacancies, this does not override a valid redundancy selection process. If roles are genuinely reduced and filled by higher-scoring employees, there is no obligation to “bump” a maternity leaver into a role already filled.

Key Takeaways

• Automatic Unfair Dismissal: Dismissing an employee because of pregnancy or maternity leave is automatically unfair and discriminatory.
• Priority for Suitable Alternative Roles: Employees on maternity leave must be offered any suitable alternative vacancy before others, where possible but do not overtake those who are more appropriate for the role.
• Consultation and Process: Employers must consult with pregnant employees or those on maternity leave about redundancy and alternative roles, even when they are absent from the day to day business operations -  failure to do so can amount to discrimination.
• Objective Criteria: Redundancy selection must be based on objective, fair criteria and not influenced by pregnancy or maternity status.
• No “Bumping” Required: If a redundancy selection process is fair and roles are genuinely reduced, employers are not required to displace other employees to retain a maternity leaver.

Summary

Case law shows that Employment Tribunals will scrutinise redundancy decisions involving pregnant employees or those on maternity leave very closely. Employers must follow fair procedures, avoid discriminatory motives and comply with the legal requirements to engage in an open and meaningful consultation where a greater emphasis is placed on considerations for suitable alternative roles. Failure to do so can result in findings of automatic unfair dismissal and pregnancy discrimination, resulting in significant compensation awards and reputational damage.

If you wish to discuss any of the issues raised in this blog please contact our specialist Employment team.