Q&As

If an employee on a fixed term contract with enhanced (contractual) maternity rights is made redundant while they are on maternity leave, is the employer required to pay her statutory notice pay? If so, and the notice period overlaps with her 39-week statutory maternity pay (SMP) period, is the employer entitled to offset the SMP against statutory notice pay?

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Published by a LexisNexis Employment expert
Published on: 08 January 2024
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The response below considers:

  1. •

    the protection from redundancy provided to a woman on maternity leave

  2. •

    the employee’s right to pay during the statutory notice period

  3. •

    whether statutory notice pay can be offset against statutory maternity pay

Redundancy during maternity leave

Special considerations apply where a woman on maternity leave is potentially redundant. In this situation, the dismissal will be unfair under section 74 of the Employment Rights Act 1996 (ERA 1996) and the Maternity and Parental Leave etc Regulations 1999, SI 1999/3312, reg 10 unless:

  1. •

    the employer first establishes that it was not practicable by reason of redundancy to continue to employ her under her existing contract of employment, ie that it was necessary to implement the redundancy during the

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