Maternity Leave And Redundancy: UK Employer Redundancy Protection

If you employ staff long enough, you’ll eventually face a tough combination: business change (restructure, closure, reduced demand) happening at the same time as someone is pregnant or on maternity leave.

This is where many small businesses get caught out. Even when a redundancy is genuine, maternity redundancy protection rules mean you can’t treat this like a “standard redundancy” exercise. There are extra legal steps, and the risk of an unfair dismissal or discrimination claim is higher if you get the process wrong.

Below, we break down how maternity redundancy protection works in practice, what has changed recently, and how to run a fair process that protects your business.

What Is “Redundancy Protection Maternity” And When Does It Apply?

In plain terms, redundancy protection during maternity (often searched as redundancy protection maternity) is the extra legal protection given to employees who are:

• pregnant (once you have been notified of the pregnancy), and/or
• on maternity leave, and/or
• recently returned from maternity leave (and in many cases, still within a protected window).

It doesn’t mean you can never make someone redundant. It means you must:

• ensure the redundancy is genuine (not linked to pregnancy or maternity),
• run a fair redundancy process, and
• follow the special rules on priority for suitable alternative employment (more on this below).

The Core Legal Idea: You Can’t “Select” Someone For Redundancy Because Of Maternity

Redundancy is about the role disappearing or the business needing fewer employees to do that work. If the real reason is pregnancy/maternity (for example, “we need someone who can be here full-time” or “covering maternity is too hard”), you’re in discrimination territory.

That’s why the process and the paper trail matter so much. A well-run redundancy process helps show you acted for genuine business reasons and treated the employee fairly.

A Quick Note On Where The Rules Come From

Several legal duties overlap here, including:

• Employment Rights Act 1996 (unfair dismissal and redundancy rules)
• Equality Act 2010 (pregnancy and maternity discrimination)
• Maternity and Parental Leave etc. Regulations 1999 (including the “suitable alternative vacancy” priority)

The takeaway for small businesses: it’s not just redundancy law you’re dealing with - it’s also discrimination risk.

What Changed Recently: The Extended Redundancy Protection Window

One of the biggest recent updates employers need to be aware of is the extension of redundancy protections for pregnancy and family leave.

Historically, the “priority right” to be offered a suitable alternative vacancy applied mainly while the employee was on maternity leave. But the law has been updated to extend that protected period.

These changes took effect from 6 April 2024. In broad terms, this means the “priority for suitable alternative employment” protection can now cover:

• Pregnancy (from the point the employee notifies you they are pregnant, rather than only once maternity leave begins)
• Maternity leave (as before)
• A period after return to work (a protected window after maternity leave ends)

This extended approach is designed to stop employees being “kept safe” during leave, then targeted immediately after they return.

Practical employer tip: if you’re planning a restructure, don’t assume you can wait until someone returns and then start redundancy consultations. Timing matters, and redundancy after maternity leave can still trigger enhanced protections depending on dates and circumstances.

If you’re unsure whether someone falls within the protected period, it’s worth getting advice early - the cost of getting it wrong (time, stress, tribunal exposure, management distraction) is usually far higher than the cost of checking first.

Does Maternity Leave Stop You From Making Someone Redundant?

No - maternity leave doesn’t create an absolute ban on redundancy.

You can make an employee redundant during pregnancy, maternity leave, or after return, as long as:

• there is a genuine redundancy situation (e.g. role no longer needed, workplace closure, reduced requirement for employees to do work of a particular kind);
• you follow a fair redundancy process; and
• you comply with the special maternity redundancy protections (especially the suitable alternative vacancy priority).

Common Genuine Redundancy Scenarios

Genuine examples that may justify redundancy (including for employees on maternity leave) include:

• you’re closing the business or a particular location;
• you’re outsourcing a function;
• you’ve lost a key contract and no longer need the same headcount;
• you’re restructuring and removing a role (not just replacing the person).

Where employers often go wrong is when the “redundancy” is really performance management, frustration about absence, or a desire to replace the employee with someone “more available”. If performance is the issue, a proper performance process (not a redundancy) is usually the safer and more appropriate route - and having a clear Employment Contract and policies in place makes a big difference.

Why This Area Is High-Risk For Small Businesses

Even if your business reasons are sound, redundancy + maternity is high-risk because:

• pregnancy/maternity discrimination claims don’t require 2 years’ service;
• tribunals scrutinise the fairness of your process and your evidence; and
• informal comments (“we need someone reliable” / “this is inconvenient timing”) can seriously undermine your position.

If you want a useful mindset: assume your decision could be reviewed by someone who knows nothing about your business and will judge you on the evidence you kept. That’s often where cases are won or lost.

The Key Rule Employers Must Follow: Priority For A Suitable Alternative Vacancy

This is the rule that most often surprises employers.

If an employee is within the protected maternity redundancy period and their role is genuinely redundant, they may have a priority right to be offered a suitable alternative vacancy (if one exists) before other at-risk employees.

In other words, you don’t simply put everyone into a selection pool and see who scores highest. If there is a suitable alternative role available, you generally must offer it to the protected employee - even if someone else is “better” for the role.

What Counts As A “Suitable Alternative Vacancy”?

There isn’t a one-size-fits-all answer. Suitability depends on the role and the individual. But in practice, you should consider:

• status/seniority (is it broadly comparable?)
• pay and benefits (is it on similar terms?)
• location (is the commute reasonable? is relocation required?)
• skills and experience (can they do it with reasonable training?)
• hours (especially relevant if flexible working is in play after maternity leave)

A “vacancy” can include roles that are about to become available - not just roles already advertised.

What If There Are Multiple Vacancies?

If there are multiple suitable vacancies, you should document:

• which vacancies you considered;
• why each is or isn’t suitable; and
• what you offered (and when).

Employer tip: don’t hide the ball. If roles exist, put them on the table clearly and in writing. A good Staff Handbook and consistent internal processes reduce the risk of “we didn’t know what the process was” arguments later.

What If There Is No Suitable Alternative Role?

If no suitable alternative vacancy exists, redundancy may still be lawful - but you’ll need to be able to show you genuinely looked and you followed a fair process.

This is where many disputes arise: not because the employer had a vacancy and refused to offer it, but because the employer didn’t properly consider alternatives or didn’t document that they did.

How To Run A Fair Redundancy Process When Someone Is Pregnant Or On Maternity Leave

Small businesses often worry that consulting with someone on maternity leave will be “intrusive” or “awkward”. But avoiding them is usually the worst option.

You must consult meaningfully, and you must not disadvantage an employee because they’re away from the workplace.

Step 1: Confirm The Redundancy Situation (And Define The Pool)

Start by documenting the business reasons for change. Then decide:

• which roles are at risk;
• whether you have a redundancy “pool” (and who is in it); and
• what selection criteria you’ll use (if selection is needed).

Be careful with criteria that could indirectly penalise maternity leave, such as:

• attendance records;
• recent performance results measured during leave;
• sales figures during the months they weren’t working.

If you do use metrics, you may need to adjust them to avoid discriminatory outcomes.

Step 2: Consult Properly (Even If They’re On Leave)

Consultation should be genuine - not a tick-box exercise. That usually means:

• explaining what’s changing and why;
• sharing how the selection pool/criteria work (if applicable);
• asking for feedback and alternatives (retraining, redeployment, reduced hours, job share);
• considering suitable alternative vacancies (and offering them where required).

For someone on maternity leave, consult in a practical way, for example:

• offer remote meetings (video/phone);
• agree reasonable contact times;
• follow up in writing after meetings.

If your redundancy programme triggers collective consultation rules, you’ll also need to manage timing carefully. The consultation period can be a trap for the unwary, so it’s worth checking the requirements around redundancy consultation periods.

Step 3: Handle Notice And Pay Correctly

If redundancy is confirmed, you’ll need to ensure:

• correct notice is given (statutory minimum and/or contractual notice);
• redundancy pay is calculated correctly (if eligible);
• any accrued holiday is handled properly; and
• the termination date is clear and confirmed in writing.

Notice rules can get complicated quickly, especially where contracts provide enhanced terms. Having clarity on redundancy notice periods helps you avoid accidental underpayment or disputes.

Step 4: Put Everything In Writing

In maternity redundancy cases, your written record really matters. Keep:

• the business rationale and organisational charts;
• the selection criteria and scoring notes (where relevant);
• consultation invitations, meeting notes, and follow-up emails/letters;
• a vacancy list and notes showing how suitability was assessed;
• the final decision letter and redundancy pay calculations.

If you’re already thinking “this is a lot”, you’re not wrong. This is exactly why many small businesses choose to get Redundancy Advice early - it’s much easier to do it right from the start than to defend it later.

Common Employer Mistakes (And How To Avoid Them)

Most maternity redundancy disputes aren’t caused by a bad intention. They’re caused by rushed decisions, poor documentation, or treating maternity leave as an inconvenience.

Here are common mistakes we see, and what to do instead.

Mistake 1: Using Attendance Or “Recent Performance” Without Adjusting For Leave

If you score someone lower because they were absent on maternity leave (directly or indirectly), you’re stepping into discrimination risk.

What to do instead: use criteria that can be assessed fairly, and adjust scoring periods so you’re comparing like with like.

Mistake 2: Forgetting The Priority Vacancy Rule

This is the big one. If a suitable alternative vacancy exists and you run a competitive recruitment process instead of offering it, that can undermine the redundancy dismissal.

What to do instead: actively search for vacancies, document the search, and offer suitable roles in writing.

Mistake 3: Inconsistent Process Across Employees

If one employee gets three consultation meetings and another gets one rushed call, you’re creating avoidable risk - especially if the employee who gets less support is on maternity leave.

What to do instead: use a consistent process and keep your timelines and communications clear.

Mistake 4: Poor Communication (Or Casual Comments)

Even a throwaway remark like “we need someone committed” can be interpreted as linked to maternity leave, and it may end up in a tribunal witness statement.

What to do instead: keep communications factual, respectful, and focused on business reasons. If you need a reminder of how often process issues drive disputes, it’s worth looking at why employers lose employment tribunals - it’s frequently about evidence and fairness, not just the underlying decision.

Mistake 5: Treating Redundancy As A Shortcut For Other Issues

If the real issue is conduct, capability, or performance, redundancy is usually the wrong tool. It can look like you’re trying to avoid a fair disciplinary or performance process.

What to do instead: choose the correct process for the correct issue, and get advice before you take action.

Key Takeaways

• Redundancy protection during maternity (often referred to as redundancy protection maternity) doesn’t ban redundancy, but it does add extra legal duties and increases discrimination risk if you handle it poorly.
• Redundancy protections for pregnancy and maternity have expanded from 6 April 2024, meaning redundancy after maternity leave can still be legally sensitive within the protected window.
• If a protected employee is genuinely redundant, they may have priority for a suitable alternative vacancy (if one exists) over other at-risk staff.
• A fair process includes: a genuine redundancy rationale, fair selection criteria, meaningful consultation (including during leave), careful consideration of alternatives, and clear written records.
• Avoid criteria and communications that could penalise maternity leave (like raw attendance or “recent performance” measured during absence).
• When in doubt, get support early - maternity redundancy is one of those areas where preventative advice is usually far cheaper than fixing a dispute later.

If you’d like help managing redundancy risk or setting up a compliant process, you can reach us at 08081347754 or team@sprintlaw.co.uk for a free, no-obligations chat.