An employee on maternity leave is on “protective leave” and cannot have her contract of employment terminated. This protection also applies to any purported redundancy.
Section 23 of the Maternity Protection Act 1994 provides the protection:
Voidance of certain purported terminations of employment, etc.
23.—Each of the following shall be void:
(a) any purported termination of an employee’s employment while the employee is absent from work on protective leave;
(b) any purported termination of an employee’s employment during a period of natal care absence;
F51[(bb) any purported termination of an employee’s employment during a period of absence from work to attend ante-natal classes in accordance with section 15A;
(bbb) any purported termination of an employee’s employment during a period of absence from work for breastfeeding in accordance with section 15B;]
(c) any notice of termination of an employee’s employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence;
(d) any notice of termination of an employee’s employment given during a period of natal care absence and expiring subsequent to such a period;
F51[(dd) any notice of termination of an employee’s employment given during a period of absence from work to attend ante-natal classes in accordance with section 15A and expiring subsequent to such a period;
(ddd) any notice of termination of an employee’s employment given during a period of absence from work for breastfeeding in accordance with section 15B and expiring subsequent to such a period;]
F52[(e) any purported suspension from an employee’s employment imposed while the employee is absent from work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with section 15A or for breastfeeding in accordance with section 15B.]
Employees on maternity leave should not be served with a notice of termination.
Termination of an employee on, or going on maternity leave, can only be terminated when they return to work after the maternity leave has expired or before the maternity leave commences.
Even an employee who is agreeable to a voluntary termination by reason of redundancy cannot be terminated during maternity leave.
Notice of termination of the employment by reason of redundancy can only run before maternity leave commences or after it has been completed.
The usual obligations in respect of a redundancy continue to apply:
- The redundancy must be genuine and unrelated to the pregnancy
- The employer must behave reasonably and fairly and adopt a fair procedure in effecting any redundancy