Currently, where an employee is being made redundant whilst she is on maternity leave, legislation requires that she must be offered any suitable alternative job that is available. The employer must offer her the job before it offers it to her colleagues, even if they are also facing redundancy. She is not expected to have to apply for the job or attend interviews or participate in a selection procedure - she must be offered the job.

If a suitable alternative job exists and an employee on maternity leave is not offered it, she may be able to claim unfair dismissal. To clarify, women who are pregnant or on maternity leave may be made redundant, assuming the redundancy is genuine.

The government has announced it will introduce legislation to extend this current redundancy protection. Under proposed new legislation, this protection will apply not just during maternity leave as currently, but from the point the employee notifies the employer of her pregnancy, whether orally or in writing, until six months after the new mother has returned to work. As reported in our previous blog, this follows the response to the government consultation on extending the period of the current protection. 

Over 75% of respondents to the consultation agreed that the maternity redundancy protection should be extended after a woman's return to work, believing that it would bring benefits to both employers and employees. The new proposed legislation will also apply to employees returning from adoption leave and shared parental leave (i.e. so to both male and female employees), although in relation to employees returning from shared parental leave, the redundancy protection leave period is yet to be determined. 

It is not yet known when the legislation will be introduced.  

The government has concluded that paternity leave does not justify any redundancy protection similar to that given to individuals returning from other types of family leave. This is because, at least in part, the purpose of the extended period of protection is to ensure that employers do not make an early judgement on an individual’s work performance in the first few months of a person returning after a long absence, which would not be the case with paternity leave which is limited to two weeks’ leave. 

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