Pregnant Employees, Redundancy and Suitable Alternative Vacancies: What Employers Must Know

Redundancy is difficult for any business, but additional care is needed when a pregnant employee is involved. UK employment law provides specific protections to ensure that an employee who is pregnant, or on maternity leave, is not unfairly disadvantaged. One of the most important protections relates to Suitable Alternative Vacancies (SAVs).

Under the Employment Rights Act 1996 and the Maternity and Parental Leave Regulations 1999, a pregnant employee selected for redundancy is entitled to special consideration. From 6 April 2024, this protection extends from the moment the employee notifies you of her pregnancy through to 18 months after the birth.

So what does this mean in practice?

If you identify a genuine redundancy situation and the pregnant employee’s role is at risk, you must follow a fair process: consultation, exploring ways to avoid redundancy, and objective selection criteria. However, when it comes to looking at alternative roles, the law gives pregnant employees priority over other potentially redundant employees.

If a Suitable Alternative Vacancy exists, the employer must offer it to the pregnant employee before offering it to anyone else. This is a rare example of positive action required by law. You cannot ask the employee to apply or compete for the role, it must be offered automatically, in writing, before her existing contract ends.

For a vacancy to be “suitable”, it must:

• Be appropriate for the employee in terms of skills and experience
• Carry terms and conditions that are not substantially less favourable than the current role
• Start immediately after her previous role ends

If the role meets these criteria, the employee has the right to be slotted into it. Refusing to offer a suitable vacancy could make the dismissal automatically unfair, regardless of the employer’s intentions.

What if the employee rejects the offer?

If the vacancy meets the legal definition of “suitable” and she unreasonably refuses it, the employer may be able to successfully argue that the employee is no longer entitled to a statutory redundancy payment. I would stress that this would be extremely rare and refusal of a Suitable Alternative Vacancy normally triggers the role being redundant, and statutory redundancy pay given where entitled.  

As with all aspects of HR and employment law It is important to document why the role was considered suitable and the discussions that took place. Documentation can prove your thoroughness and thought process.

In summary, employers must proactively identify and offer any SAVs to pregnant employees who are at risk of redundancy. This legal duty is strict, and the consequences for getting it wrong can be significant. A careful, well-documented process protects both the employee and your business. If you need assistance with redundancy and you are an Early Years employer our Fixed Price Redundancy Package may be just what you need. Find out more here.