Redundancy during sick or maternity leave

This is a question that comes up very often, and the short answer is yes, it is legally possible to be made redundant while on sick leave or maternity leave, but there are important protections in place that significantly affect how an employer can go about it.

Redundancy while on sick leave:

There is no general legal prohibition on making someone redundant while they are off sick. An employer can carry out a genuine redundancy exercise that happens to affect someone who is on sick leave. However, the employer must still follow a fair process, which includes consulting with the affected employee properly, applying fair and objective selection criteria, and considering suitable alternative employment.

The key risk for the employer is that if the sick leave is connected to a disability within the meaning of the Equality Act 2010, selecting someone for redundancy because of their absence or their disability would amount to unlawful discrimination. The employee could bring claims for both unfair dismissal and disability discrimination. Even if the redundancy is genuine, the employer needs to be careful that the process does not indirectly disadvantage someone because of disability, for example by using sickness absence as a selection criterion.

If you are off sick when a redundancy process is announced, the employer should still make reasonable efforts to include you in consultation meetings, whether by phone, video call, or in person if you are well enough.

Redundancy while on maternity leave:

This is where the law provides much stronger protection, and the position has recently been strengthened.

Under the Maternity and Parental Leave etc. Regulations 1999, regulation 10, where a redundancy situation arises during maternity leave, the employee is entitled to be offered any suitable alternative vacancy that exists, in priority over other employees. This is not simply a right to be considered for alternative roles. It is a right to be offered the role ahead of others, provided it is suitable and appropriate.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, which came into force on 6 April 2024, extended this priority protection. It now applies not only during maternity leave itself but also during pregnancy and for a period of 18 months after the expected date of childbirth where the employee has taken maternity leave. Similar protections apply to those on adoption leave and shared parental leave.

An employer can still make someone on maternity leave redundant if there is a genuine redundancy situation and no suitable alternative vacancy exists. But the employer must not select someone for redundancy because of their pregnancy or maternity leave, as that would be automatically unfair dismissal under section 99 of the Employment Rights Act 1996 and sex discrimination under the Equality Act 2010.

Practical considerations:

1. If you are currently facing redundancy while on sick leave or maternity leave, the first thing to check is whether there is a genuine redundancy situation at all. Sometimes employers dress up a dismissal as a redundancy when the real reason is the employee's absence, pregnancy, or health condition. That would be unlawful.

2. Look carefully at whether proper consultation has taken place. Were you informed of the situation, given an opportunity to respond, and considered for alternative roles?

3. If you are on maternity leave, check whether there are any suitable alternative vacancies within the organisation or any associated employer. If there are, you should have been offered one as a priority.

4. Keep records of all communications. If you suspect the redundancy is not genuine or is tainted by discrimination, contemporaneous evidence will be important.

5. If you want to challenge the redundancy, the usual route is to raise a grievance internally first, then consider an ACAS early conciliation notification, and if necessary bring a claim to the employment tribunal. The time limit for tribunal claims is generally three months less one day from the effective date of termination, though the ACAS conciliation process can extend this slightly.

If you can share more detail about your specific circumstances, I can give you a more tailored view of where you stand.