Redundancy while pregnant, or on or after maternity, adoption, shared parental leave or neonatal leave

A redundancy is a type of dismissal. Redundancies occur when businesses close down, move location, or there is a reduction in the number of employees needed to do work of a particular kind. 

Special rules apply, but it is possible to be made redundant during maternity leave, adoption leave or shared parental leave, as long as it’s a genuine redundancy situation and you have not been chosen for redundancy because of your pregnancy or maternity, adoption and shared parental leave (family-related leave).

This article provides information on the special rules that apply to redundancies for those who are on family-related leave. It also gives advice on rights and entitlements if you are being made redundant while you are pregnant or on family-related leave.

For other information and advice, see our other pages on:

• Redundancy
• Dismissal during pregnancy and maternity leave
• What to do if you are under threat of redundancy
• Coronavirus FAQ page on Redundancy

If you are concerned that your employer is not following a proper redundancy process or is unaware of their legal obligations, you can download and show them our redundancy factsheet below.

Is there a genuine redundancy situation?

A genuine redundancy happens for one of three reasons:

1. Your place of work closes or moves (this can be temporary or permanent)
2. The type of work you do will no longer be carried out at your place of work
3. Fewer employees are needed to do the particular type of work that you do

It is the role that becomes redundant, rather than the person. It is unlawful to make you redundant if one of the three reasons above does not apply. For example, if you are returning from maternity leave and your employer says your role is being made redundant, but you find out that they are keeping your maternity cover, then your role is not genuinely being made redundant. In that situation, you could have a potential claim against your employer for unfair dismissal and maternity discrimination, and you should seek advice. Your role continues and you should be entitled to return to your old job (unless after Additional Maternity Leave it is not reasonably practicable). 

If there isn’t a genuine redundancy situation, your employer can still dismiss you, but there must be a fair reason to do so. See our article on dismissal in maternity leave.

Is there a fair selection process?

If there is a genuine redundancy situation, your employer must follow a fair redundancy process. This usually involves identifying appropriate roles to fall within the pool for redundancy, and consulting with all individuals at risk of redundancy. For more details on what constitutes a fair selection process, see our article on Redundancy.

You have a right to be consulted even if your are on maternity/adoption/shared parental leave. Your employer should still give you as much warning as possible to enable you to consider alternative solutions. 

You should not be selected for redundancy because of your pregnancy, or your maternity, adoption or shared parental leave. You should also not be selected for redundancy based on factors related to your pregnancy and/or maternity leave. For instance, pregnancy-related sick leave, absence for prenatal appointment, or length of leave must not be taken into account. Criteria that indirectly discriminate against women (e.g. selecting part-time employees ahead of full-time employees) may also be unlawful.

If you think you have been unfairly selected for redundancy based on pregnancy or maternity/adoption/shared parental leave, or you were not consulted, it is important to seek advice. Also see our page on what to do if you are under threat of redundancy.

Were you given priority for a suitable alternative vacancy?

Employees in certain categories must be given priority over their colleagues if there is any suitable alternative vacancy which could be offered to them in the event that their current role is confirmed as redundant.  This protection is due to Regulation 10 Maternity and Parental Leave Regulations 1999 (MAPL). It applies to employees who:

• are pregnant
• have suffered a miscarriage
• are on maternity leave
• are on adoption leave
• are on shared parental leave
• are on neonatal leave (from 6th April 2025)
• have recently returned (see below) from a period of maternity, adoption, shared parental leave or neonatal leave.

As part of the redundancy procedure, your employer should consider whether there is another role that you could do, with or without a reasonable period of training. This may be in a group company or another department. Your employer should carry out a sufficiently thorough search for alternative roles, but they do not have to create alternative jobs if there are none available. 

For the role to be suitable alternative employment, your employer must consider: 

• the nature of the job offered (status, work and terms, especially pay, hours and location); and 

• the employee in question (whether the job is a good match for you considering your individual circumstances, your skills and experience, whether you meet the requirements of the job, and whether the new job is similar in terms of status, content, salary, responsibility, hours, and location). 

During pregnancy 

From 6 April 2024 you must be given priority for any suitable alternative employment during pregnancy.  The protection will start from the date you tell your employer about your pregnancy. 

During and immediately following maternity, adoption,shared parental leave or (from 6th April 2025) neonatal leave

If you have taken/are taking maternity leave then you will also have priority for suitable alternative employment for a period of 18 months from your child’s date of birth (if notified to your employer) or 18 months from the Expected Week of Childbirth if not notified.

If you have taken Adoption leave, you will have priority for suitable alternative employment from the start of your adoption leave until 18 months from the date of placement.

If you have taken shared parental leave for at least 6 continuous weeks, you will have priority for suitable alternative employment  from the start of your shared parental leave  until 18 months from the date of childbirth. If you have taken 6 weeks’ of shared parental leave, but those 6 weeks were not continuous, the priority for suitable alternative employment will apply only during the period of shared parental leave. 

(From 6th April 2025) If you have taken neonatal care leave for at least 6 continuous weeks, you will have priority for suitable alternative employment during the neonatal care leave and from the day after you have taken 6 continuous weeks of neonatal care leave until 18 months from the date of childbirth. 

Examples

If you take 6 months maternity leave before returning to work, you will have priority for suitable alternative employment from the date you notify your employer of your pregnancy until 18 months from the date of childbirth (if notified to your employer). In this scenario,  the protection will continue for approximately 1 year after you have returned to work. 

If you take 12 months maternity leave, you will also have priority for suitable alternative employment from the date you notify your employer of your pregnancy until 18 months from the date of childbirth (if notified to your employer) but in this scenario, the protection will continue for approximately 6 months after you return to work.

If a partner takes 8 continuous weeks of shared parental leave starting 2 months after the birth, they will have priority for suitable alternative employment from the start of their shared parental leave until 18 months from the date of childbirth (if notified to their employer). In this scenario, the partner’s protection will continue for a period of approximately 14 months after they have returned to work. 

Miscarriage

If your pregnancy ends before you have qualified for maternity leave (i.e. before the 24^th week of pregnancy), the protected period continues for a period of two weeks after the end of the pregnancy.  This protection is also available if a miscarriage happens before you have informed your employer of your pregnancy (as long as you inform your employer within a period of two weeks following the miscarriage then the protection will apply for the remainder of the two week period).

Requirement to offer suitable alternative vacancies

You do not have to apply or be interviewed for any suitable alternative vacancy but should be offered it over your colleagues. Your employer also cannot wait until all available vacancies have been filled before determining whether there is a suitable alternative vacancy.

To be a suitable alternative vacancy, the terms and conditions of the new job must not be substantially less than the old job. This must be determined in each case considering your individual circumstances, and whether the new job is similar in terms of status, content, salary, hours and location.

If you are not offered a suitable vacancy, or your employer insists that you apply for an alternative role, you may have a claim for unfair dismissal so it is important to seek advice.

How does this apply in practice and when is the obligation triggered? 

Regulation 10 is only triggered once the employee has been selected for redundancy, it should not be factored into the selection process itself. So, once it is clear that it is no longer reasonably practicable to continue to employ the employee under their existing contract of employment, Regulation 10 protection is triggered and if there is a suitable alternative role available, the employee (from one of the categories above) must be offered it in priority to any other potentially redundant employees. 

What if there is more than one “suitable alternative” role?  

Your employer only has a duty to offer you a suitable alternative role where one exists, not a duty to offer you the most suitable role, or to offer you a choice of suitable roles where there is more than one. Provided the role meets the threshold of suitability and appropriateness, and the terms are not substantially less favourable, the employer will have complied with Regulation 10 (even if you would have preferred a different role). If you refuse to accept a suitable role, you may lose your right to a redundancy payment.  

What if I am unsure about the role I have been offered? 

If you are unsure about the role you have been offered (perhaps because it is a role that’s very different to your current role even though with training it’s something you could do) you can trial the role for up to 4 weeks. If you do not feel the role is suitable you can then be made redundant.  

When should my new role start? 

The new role must commence immediately on termination of the old role / contract.  

What happens if my employer is reducing 10 roles down to 5? Do I get priority for one of the 5 roles if I am pregnant / on maternity / family leave / recently returned from family leave? 

No, Regulation 10 would not apply in this situation. Where an employer is simply reducing the number of existing roles from say 10 to 5, there is no requirement to offer one of the remaining roles as a suitable vacancy under Regulation 10. This was confirmed by the EAT in Carnival Plc (t/a Carnival UK) v Hunter [2024] EAT 167 . In this case, the claimant was on maternity leave when 21 team leader posts were reduced to 16. She was one of six team leaders to be made redundant following a scoring exercise. She brought a claim for automatically unfair dismissal on the basis that her former employer had breached Regulation 10 by not offering her one of the remaining 16 team leader posts. The EAT confirmed that these roles pre-existed and could not have constituted a “suitable alternative vacancy” which the claimant would have been entitled to have been offered under a new contract of employment. No new roles had been created. The Claimant therefore wasn’t entitled to one of these roles by virtue of Regulation 10. 

Examples showing how Regulation 10 works: 

I have taken 9 months maternity leave and have returned to work last week and been told my role, as well as 2 other roles are being deleted and 2 new roles are being created. My employer said all 3 of us can interview for the new roles and whoever scores the lowest will be made redundant.  

Once you have been selected for redundancy and it is clear that your role will no longer exist, Regulation 10 protection is triggered. As you have only recently returned from maternity leave, this protection will apply to you (and will continue to apply up to 18 months after the birth of your child). This means, as your employer has identified 2 possible new roles that would be “suitable alternative roles”, you must be offered one of them. You should not have to interview or compete for the role. If both roles are suitable, you can’t insist on being given your preferred role (though you can of course request this). The other two employees, not on or recently returning from family related leave will have to compete for the one remaining role. If you refuse the suitable alternative role you may lose your right to a redundancy payment.  

I have taken 9 months maternity leave and have returned to work and been told 10 roles (of which one is mine) are being reduced to 7. Will Regulation 10 protection apply to me? Should I be given one of the 7 roles? 

Regulation 10 will still apply to you but as the 7 roles are pre-existing roles, and not therefore vacancies, Regulation 10 protection will not apply to these roles. If there are any other “vacancies” that may be suitable and appropriate for you, either within your company or a group company, Regulation 10 will apply to those roles and you can explain to your employer you should be given one of those roles in priority. If there are no suitable roles, your employer can make you redundant.  If there is a suitable alternative role and you refuse it, you may lose your right to a redundancy payment.  

What happens if my employer has a vacancy for a role which I believe is a suitable alternative role for me but they disagree? 

Unfortunately, you will need to make your case to your employer. Gather as much evidence and information as you can on the role and your skills and experience to demonstrate why this would be a suitable alternative role for you. Remember in considering whether or not a role is suitable alternative employment, your employer must consider: 

• the nature of the job offered (status, work and terms, especially pay, hours and location); and 

• the employee in question (whether the job is a good match for you considering your individual circumstances, your skills and experience, whether you meet the requirements of the job, and whether the new job is similar in terms of status, content, salary, responsibility, hours, and location). 

It would help if you could show how you meet the skillset required and demonstrate that the role is similar in terms of status, salary etc. If your employer doesn’t agree, you could consider raising this as a grievance (or raise it in any appeal if you are made redundant). If your employer refuses to give you the role, and you believe it is suitable, you may want to consider a claim for unfair dismissal . You may also have a claim for discrimination if Regulation 10 applied. You should seek advice.  

I have just been told my role is going to be made redundant. I finished my maternity leave 9 months ago and my baby is just over 18 months. I feel like my employer waited until I didn’t have Regulation 10 protection to make my role redundant. Is there anything I can do.  

Unfortunately, the rules on how long Regulation 10 protection lasts are very strict. If your role has been made redundant outside of the 18 month window since the birth of your child, you will not qualify for this protection. Your employer will however, still have the obligation to conduct a fair redundancy process. This means they must select you fairly, consult with you and consider if there are any suitable alternative roles even if they are not obliged to prioritise you for those roles. If they intentionally waited to start the redundancy exercise until after you fell outside of Regulation 10 protection, they would arguably be treating you unfavourably for taking maternity leave which could give rise to a maternity discrimination and /or detriment claim. This can be difficult to prove and you would need evidence of the fact your employer delayed the redundancy so that you couldn’t get the Regulation 10 protection. You should seek advice.  

I am trying to adopt / get pregnant. My employer has just informed me my role is going to be made redundant. Does Regulation 10 protection apply to me? 

Unfortunately no. You need to be pregnant and have informed your employer of your pregnancy before the protection applies. If you are adopting, the protection only applies once you have started adoption leave. You will still, however have all your other employment protections. If your employer has selected your role for redundancy because you are trying to get pregnant or because they know of your intention to take maternity leave / adoption leave, you may have a claim for discrimination / unfair dismissal and should seek advice.  

My partner and I are taking Shared Parental leave at the moment. He has been informed that his role is being made redundant. He has only taken 2 weeks Shared Parental leave. Does he still get protection? 

Yes. If your partner’s role is redundant whilst he is on shared parental leave, he is entitled to be offered a suitable alternative vacancy (where one is available). He should not have to interview or compete for the role. The vacancy must be offered before his existing contract ends and start immediately after the end of that contract. This is because of Regulation 39 of the Shared Parental Leave Regulations. 

If he has returned from Shared parental leave, as he only took 2 weeks leave he will not be entitled to any further protection. In order for the additional period of protection to apply, he needs to have taken at least 6 weeks continuous shared parental leave. He would then be protected for a period of 18 months from the date of birth of his child.  

What if there are 2 or more employees entitled to priority and only 1 vacancy?

If there are 2 or more employees with redundancy protection due to being on maternity, adoption or shared parental leave, but only one suitable alternative vacancy, then the usual principals of fairness will apply when the employer chooses who to offer the vacancy to.

This means that the employer must make each of the employees aware of the suitable alternative vacancy and then carry out a fair selection process. For example, by inviting applications from the employees who have priority and holding interviews for the role.

Declining an offer of alternative employment

Please note that you should make the decision to decline an offer for an alternative vacancy carefully. If your employer offers you a suitable alternative vacancy and you turn it down unreasonably you will lose your right to a redundancy payment. Whether it was reasonable for you to turn it down depends on your reasons and can include your health and your personal or family commitments.

What payment am I entitled to?

If you are made redundant, you may be entitled to:

1. redundancy pay
2. notice pay, or pay in lieu of notice
3. accrued annual leave not yet taken 

Whether or not you receive redundancy pay and notice pay depends on how long you have worked for your employer. Your contract might also give you more than the legal minimum. You should always check your contract to see what it says.

If you are entitled to Statutory Maternity Pay (SMP) at the time you are dismissed, you will continue to receive it for the remainder of the SMP period. This is because SMP is not dependent on being an employee.

For more information, see our FAQ on redundancy and notice pay.

What should I do if I think I have been treated unfairly?

If you think you have been unfairly selected for redundancy based on pregnancy or maternity/adoption/shared parental leave, or you were not consulted, or you have not been offered a suitable alternative vacancy you should have been, or you believe you should have received more in a redundancy payment, then it is important to seek advice. Also see our page on what to do if you are under threat of redundancy.

Frequently Asked Questions

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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