Can I make someone redundant while they are on maternity leave?

18th September 2026

Compensation for pregnancy and maternity discrimination has no upper limit. Gov.uk puts it in five words: “There’s no limit in cases of discrimination.” There is also no length of service to get over before she can bring the claim. That combination is what makes this redundancy feel unlike every other one you have handled, and it is why the order you do things in matters more here than anywhere else in a redundancy process.

The short answer is yes. A business that genuinely no longer needs a role is not required to keep funding it until she comes back. Whether you can do it safely turns on two things which have nothing to do with each other.

Two questions, not one

The first is whether the redundancy is real. Section 139 of the Employment Rights Act 1996 is narrower than most owners assume. A redundancy exists where the business is closing, or closing at the place where she was employed, or where the requirement for employees to do work of a particular kind has ceased or diminished. Reorganising a role because you are unhappy with how someone does it is not redundancy. If the role reappears under a new title three months later, expect to be asked what had actually ceased or diminished.

The second is whether the pregnancy or the leave played any part in the decision. Section 99 of the same Act, read with regulation 20 of the Maternity and Parental Leave etc. Regulations 1999, makes a dismissal automatically unfair where the reason is the pregnancy, the birth, or the fact that she took maternity leave. Section 108 sets a qualifying period of two years for ordinary unfair dismissal, and subsection (3)(b) takes that qualifying period away entirely for these claims. Separately, section 18 of the Equality Act 2010 makes it discrimination to treat a woman unfavourably because she is exercising, or has exercised, the right to maternity leave.

Those two tests are independent. A redundancy can be entirely genuine and still cost you, because of what you did next.

One duty applies to her and to nobody else in the pool

This is the part small employers miss, and it is the one with teeth.

Regulation 10 of the same Regulations says that where a suitable available vacancy exists, she is entitled to be offered it before her existing contract ends. Not invited to apply. Not shortlisted. Offered. The vacancy can be with you, a successor or an associated employer, and the work has to be suitable and appropriate for her on terms that are not substantially less favourable than the ones she has.

Here is what makes it bite. Regulation 20 also says that where the reason for dismissal is redundancy and regulation 10 has not been complied with, the dismissal is automatically unfair. So this is not a good practice point that a tribunal weighs in the round. Miss the vacancy and the dismissal is unfair on that ground alone, however genuine the redundancy was and however carefully you ran the rest of the process.

Gov.uk states the effect plainly: she has the right to be offered a suitable alternative job where one is available, and that applies even if other colleagues are more suitable for the role. Acas says the same, that she has priority over other employees even where they are also suitable. So if you have a vacancy and you run a fair competitive process for it, you have already gone wrong, because a fair competition is the one thing the law says she does not have to win.

Take the honest position on the other side of this too. If there is no suitable vacancy, there is no suitable vacancy. The duty is to offer a role that exists, not to invent one or to displace somebody else to create one.

How long the protection lasts

Longer than most employers think, and it does not end when she comes back. The protected period starts when you are told she is pregnant and runs through her maternity leave. A further protected period then starts the day after her leave ends and runs to 18 months from the first day of the expected week of childbirth, or 18 months from the actual date of birth where she has given you that date in writing. Acas puts it more simply as 18 months from the date the baby is born.

The practical version: work out the 18 month date, write it down, and apply the vacancy duty to any restructuring that touches her role before then.

While she is off: selecting and consulting

You are allowed to contact her. Regulation 12A says reasonable contact between employer and employee during maternity leave does not bring the leave to an end, and she can do up to 10 days of work, commonly called keeping in touch days, without ending it either.

“I did not want to disturb her” is a kind instinct and a terrible defence. If she is not told about a consultation, or not sent the list of vacancies, the reason she missed out is her maternity leave, and that is the finding you cannot afford.

On scoring, Acas is explicit: you must not select anyone because of maternity leave, and an attendance record used as a criterion must not include absences relating to pregnancy or maternity. The same logic applies to anything that quietly penalises her for not being there: recent performance data, current client relationships, availability for a new shift pattern. Score her on the period before she went, write the criteria and the scores down at the time, and do not reconstruct them afterwards.

The money, which is where small employers slip

Two things catch people out, and both are cheap to get right. Redundancy pay is based on her normal contractual gross weekly pay, not on what she has been receiving while on leave. Acas states this directly. Check the notice pay figure on the same basis rather than assuming it follows the reduced rate.

And statutory maternity pay does not stop because the employment does. HMRC guidance for employers says you remain liable to continue paying it where she leaves your employment for any reason, including redundancy. It stops only if, after the birth, she starts work for another employer who did not employ her in the qualifying week. Budget for the remainder of the 39 weeks before you make the decision, not after.

What to do this week

Write down, in one document, why the role is going and what changed in the business to cause it. Date it. If you cannot explain it without referring to her, stop.

Then list every vacancy you have or expect in the next few weeks, including at any associated company, and ask of each one whether it would be suitable for her. Offer any that is, in writing, before her contract ends and without asking her to compete for it.

Write to her at home, tell her what is happening and why, offer a call or a meeting on a day that suits her, and send her the vacancy list and the selection criteria in the same letter. Keep the letter, the scores and the notes together. Tribunal claims arrive months later, and from 1st October 2026 they will arrive later still.

What changes over the next year

From 1st October 2026 the time limit for bringing a tribunal claim goes from three months to six, so your records need to stay usable for longer than they used to. From 1st January 2027 the qualifying period for ordinary unfair dismissal falls from two years to six months. That makes no difference to her, because the protections above never required any service at all, but it changes your exposure on everybody else in the same redundancy pool, and what changes on 1st January 2027 sets out the rest of it.

During 2027, with no date announced, the government intends to bring in enhanced dismissal protections for pregnant women and new mothers, restricting the grounds on which they can be dismissed during pregnancy, during leave and for a period after returning. The consultation closed on 15th January 2026 and the response had still not been published when this was written. Until the regulations appear, nobody knows how long the period after return will be or which reasons for dismissal will survive. If you are planning a restructure for next year, that uncertainty is itself a reason to deal with anything in this category now rather than later.

Tarn.hr provides HR guidance based on UK employment law and Acas codes of practice. It does not constitute legal advice and should not be relied upon as such. Employment law is complex and turns on the facts of each case. For any situation involving significant legal risk, potential tribunal claims, or matters of particular sensitivity, you should seek advice from a qualified employment solicitor. Tarn.hr is not responsible for any decisions made on the basis of its guidance.