Ask the expert: Maternity leave redundancy

Q: We have an employee who has been with us for four years. She worked as a receptionist for the first three years, but last year changed her role to an administrator, where her responsibilities now consist only of opening correspondence and filing. The employee started maternity leave 10 months ago and is due back in two months’ time. Since she has been off, her duties have been absorbed by the remaining receptionists, so the job of administrator no longer exists.

Can I make this role redundant? I can offer her a receptionist role but at a slightly reduced rate than her current salary.

A: An employee returning from ordinary maternity leave (OML; the first 26 weeks after the birth of the child) has the right to return to exactly the same job that she left.

An employee returning from additional maternity leave (AML; 26 to 52 weeks after the birth) has the right to return to the same job unless it is not reasonably practical for her to do so. In this case, the employee should return to the most suitable employment, but with no less favourable terms and conditions than before.

In terms of redundancy, an employer can reorganise the work in a way that requires fewer employees. This can happen even if there is just as much work to be done as before. An employee should not be automatically selected just because she is on maternity leave, but in this situation the employee was the only one who held the role of administrator.

If an employee is made redundant whilst on maternity leave, under Regulation 10 of the Maternity and Parental Leave Regulations 1999, she must be offered a suitable alternative vacancy, if one exists, as soon as the post is at risk of redundancy. The terms and conditions of this new job must be not substantially less favourable than the original job.

The employee on maternity leave should be given first refusal of any suitable alternative job and should not have to attend interviews, as they have priority over other workers being made redundant (who are not on maternity leave).

Your plan is to offer the employee a suitable alternative role as receptionist. This means redundancy is not relevant in this instance as an employee returning from AML does not have to return to the same job.

Redundancy would only be a consideration for an employee returning from a period of OML.

With regards to salary, for a role change following AML (avoiding a redundancy situation) the pay must be retained at its previous level. The law states that the “suitable and appropriate” alternative job must be on no less favourable terms and conditions.

If the matter is dealt with as a redundancy and offer of suitable alternative employment, there might be scope to reduce to the lesser hourly rate.

This area of law can be a tricky one to navigate so get in touch with the MDDUS employment law advisory team for more specific advice.