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When an organisation needs to consider redundancies, it must have a fair reason for doing so. Unfortunately, during the pandemic some Day Nurseries may need to consider redundancies in order to manage the impact of loss of business. In this article we explain what should happen if an employer identifies that a role occupied by an individual on maternity leave is to be at risk of redundancy.

1. Why the role?

The first thing the employer must establish is whether it would be fair to place the role at risk? For example, say the employee is in a pool of colleagues doing the same job and the employer identifies that they need to reduce the number of employee’s employed in that role. If the employer applies a selection criteria and includes dates when the woman who is on maternity leave was off for pregnancy related absence that may be discrimination.

2. What protection does the woman on maternity leave have?

She has the right not be discriminated against due to being on maternity leave. A woman on maternity leave also has the protection that any roles that she is capable of fulfilling that would avoid a redundancy should be offered to her. She would not need to apply. This protection does not exist for pregnant women only those on maternity leave. During the period of 2 weeks following the birth of her child (4 weeks if she works in a factory) the woman is on compulsory maternity leave. She cannot return to work, even if she wished to! During this period she cannot be treated unfavourably for taking this compulsory maternity leave. She doesn’t need to compare her less favourable treatment with anyone else during her protected period.

3. Are their suitable alternative vacancies the woman could have?

You as an employer do not need to create a position, but it must be evident that no other position exists that would avoid a redundancy. It does not matter that the woman would not be performing the role until she returned from maternity leave in order for the role to be offered to her. She has the right to be given a role that she is capable of ahead of other applicants. She has the right for you to look for alternative roles right up to the date of termination.

4. So can a Day Nursery Owner dismiss a woman on maternity leave for redundancy?

The simple answer is yes. The employer can potentially terminate an employee on maternity leave for reasons of redundancy, but it must be a fair reason. Consultation will be crucial to prove that you have treated the woman fairly, and genuinely explored alternatives that would avoid a redundancy.

Keeping in touch is more difficult so the employer must think creatively as to how they can keep open the consultation channel and effectively involve the woman on maternity leave. Pay attention to the feedback they give you if a selection criteria is used. Be prepared to defend the decision making process as to why a particular role is now at high risk of redundancy. Notes of management meetings may be useful. Remember a woman’s performance during pregnancy may have been impacted by the pregnancy. Consider how you will explain any scores awarded. Make sure the outcome is communicated effectively and keep looking for alternatives right up to the date of departure. Always ensure that the woman on maternity leave is accompanied by her trade union rep or work colleague to the consultation meetings.

If you need any help with a redundancy programme, please do not hesitate to call us on 01527 306066. Our redundancy support package is for sale here.