Important disclaimer
This article provides general information only and is not legal advice. Every situation is different, and your rights depend on your specific circumstances. For advice about your situation, contact the Fair Work Ombudsman or seek legal advice.
Finding out you're pregnant should be exciting. Finding out you're being made redundant while pregnant can be devastating. If this is happening to you, you're probably wondering: is this even legal? The answer is yes - but only in specific circumstances.
Your employer can make you redundant while you're pregnant, but the redundancy must be genuine and have nothing to do with your pregnancy. This guide explains your rights, how to identify if a redundancy is discriminatory, and what steps you can take to protect yourself.
The short answer: yes, but only if genuine
Yes, your employer can make you redundant while you're pregnant. However, it must be a genuine redundancy - meaning your job truly no longer exists due to operational reasons like restructuring, technology changes, or business downturn.
What makes a redundancy genuine?
- The position no longer exists - Your specific role has been eliminated, not just reassigned to someone else
- Business operational reasons - There are legitimate business reasons (restructuring, reduced demand, new technology)
- Not related to your pregnancy - The decision has nothing to do with you being pregnant or planning to take parental leave
- Proper process followed - Your employer consulted with you and considered alternatives
It is illegal for your employer to select you for redundancy because you are pregnant, have disclosed your pregnancy, are taking parental leave, or have family responsibilities. This is discrimination and is prohibited under the Fair Work Act 2009 and anti-discrimination laws.
What counts as a genuine redundancy?
A genuine redundancy occurs when an employer no longer requires a job to be done by anyone because of changes in the operational requirements of the business. This could be due to:
Business restructuring
The company is reorganizing departments or consolidating roles, and your position is no longer needed in the new structure.
Reduced workforce requirements
The business has less work and genuinely needs fewer employees to perform the remaining tasks.
Technology or process changes
New technology or systems mean certain roles are no longer required to achieve the same business outcomes.
Business closure or downturn
The business is closing down, a location is shutting, or there's a sustained reduction in revenue requiring workforce reduction.
Importantly, a redundancy is not genuine if:
- Your duties are simply being reassigned to other employees
- The role is being advertised or filled by someone else shortly after your departure
- The timing coincides suspiciously with your pregnancy announcement
- You're the only pregnant employee selected for redundancy when others in similar roles are retained
- Your employer has not genuinely considered alternative positions for you
Your protections during pregnancy
Australian workplace law provides strong protections for pregnant employees. Under the Fair Work Act 2009 and anti-discrimination legislation, you are protected from:
Adverse action
Your employer cannot dismiss you, injure you in your employment, or alter your position to your detriment because you are pregnant or exercising workplace rights related to pregnancy or parental leave.
Discrimination
It is unlawful to treat you less favourably than other employees because of your pregnancy, potential pregnancy, or family responsibilities. This includes selection for redundancy based on pregnancy.
Unfair dismissal
If you've been employed for at least 6 months (12 months for small businesses with fewer than 15 employees), you're protected from unfair dismissal. A redundancy based on pregnancy would likely be considered unfair.
These protections apply regardless of whether you're full-time, part-time, or casual (if you're a long-term casual with regular hours). Learn more about pregnancy discrimination at work.
Warning signs your redundancy might be discriminatory
While a genuine redundancy can happen to anyone, certain warning signs suggest your pregnancy may have influenced the decision:
Suspicious timing
The redundancy was announced shortly after you disclosed your pregnancy or requested parental leave.
Inconsistent explanations
Your employer's reasons for the redundancy keep changing or don't align with business operations.
Role continues to exist
Your duties are reallocated to others, or the company hires someone new to perform similar tasks.
Selective redundancy
You're the only pregnant employee selected when colleagues in comparable positions are retained.
No consultation
Your employer didn't consult with you about the redundancy or consider alternatives.
Previous negative comments
Your employer has made comments about your pregnancy being "inconvenient" or questioned your commitment.
Questions to ask your employer
If you're being told you're at risk of redundancy, you have the right to ask questions and receive clear answers. Request a meeting and ask:
Why is my position being made redundant?
Ask for specific business reasons and documentation
Will my duties continue to be performed?
If yes, by whom? If no, how will the business operate without this function?
Are there any alternative positions available?
Your employer must offer suitable alternative roles if available
What is the selection criteria for redundancy?
How was it decided that your role, specifically, would be eliminated?
Have other employees been consulted?
Is this part of a broader restructure or affecting only you?
Can I see the written redundancy proposal and business case?
Request documentation in writing
Important: Request all information in writing. Keep notes from meetings, including dates, times, who was present, and what was said. This documentation is crucial if you need to challenge the redundancy.
What to do if you're made redundant while pregnant
If you receive notice of redundancy while pregnant, take these steps:
Request written confirmation
Ask for the redundancy notice in writing, including the reasons for your redundancy, the business case, and details about alternative positions considered.
Document everything
Keep copies of all emails, letters, meeting notes, and conversations about the redundancy. Note dates, times, and who said what. This creates a paper trail.
Check your entitlements
Calculate what you should receive: redundancy pay (based on service), notice period pay, accrued annual leave, and long service leave (if applicable). Use the Fair Work pay calculator.
Seek advice immediately
Contact the Fair Work Ombudsman on 13 13 94 or use their online enquiry service. Consider speaking with a union or employment lawyer.
Know your timeframes
You typically have 21 days from the date of dismissal to lodge a general protections claim with the Fair Work Commission if you believe the redundancy is discriminatory. Don't delay.
Your right to alternative employment
Before making you redundant, your employer must consider and offer you any suitable alternative positions within the business.
What counts as a suitable alternative position?
An alternative position is considered suitable if it:
- Is comparable in status and pay to your current role
- Matches your skills, qualifications, and experience
- Takes into account your circumstances, including your pregnancy
- Is within reasonable commuting distance (or offers remote work arrangements)
If your employer offers you an alternative position, you have the right to consider it carefully. You can refuse an unsuitable position without losing your redundancy entitlements. However, refusing a suitable alternative may affect your redundancy pay. Employers managing these transitions can use digital HR records to document all alternative position offers and employee responses.
If you're pregnant and concerned about how an alternative role would work with your upcoming parental leave, you can discuss flexible working arrangements as part of accepting the new position.
What you're entitled to if the redundancy is genuine
If your redundancy is genuine, you are entitled to several payments. Being pregnant does not change these entitlements.
| Entitlement | Amount | Notes |
|---|---|---|
| Redundancy pay | 4-16 weeks pay (based on service) | 1 year = 4 weeks, 2 years = 6 weeks, up to 16 weeks at 9+ years |
| Notice period | 1-5 weeks (or payment in lieu) | Depends on length of service; your employer may pay you instead of notice period |
| Annual leave | All accrued annual leave paid out | Includes any unused annual leave balance |
| Long service leave | Pro-rata if you've worked 7+ years | Varies by state; check your state's LSL rules |
Impact on parental leave entitlements
If you're made redundant before your parental leave begins, you will not have access to unpaid parental leave from that employer (as you're no longer employed). However, you may still qualify for government Paid Parental Leave Pay through Centrelink if you meet the eligibility criteria. Read our guide on how to take maternity leave in Australia to understand your government entitlements.
Key takeaways
- You can be made redundant while pregnant, but only if the redundancy is genuine and unrelated to your pregnancy
- Discrimination based on pregnancy is illegal - you're protected under the Fair Work Act and anti-discrimination laws
- Your employer must offer you any suitable alternative positions before making you redundant
- Ask questions, get everything in writing, and document all communications
- If you believe the redundancy is discriminatory, you have 21 days to lodge a complaint with the Fair Work Commission
- Even if redundant, you may still qualify for government Paid Parental Leave Pay through Centrelink
Facing redundancy while pregnant is stressful, but you have rights. Don't hesitate to seek advice early - contact the Fair Work Ombudsman on 13 13 94, speak to your union, or consult an employment lawyer to understand your specific situation.
Related resources
Frequently asked questions
Can I be made redundant while pregnant in Australia?
Yes, you can be made redundant while pregnant, but only if the redundancy is genuine and not related to your pregnancy. A genuine redundancy occurs when your job no longer exists due to operational changes like restructuring, technology changes, or business downturn. It is illegal to select you for redundancy because you are pregnant or taking parental leave.
How do I know if my redundancy is genuine?
A genuine redundancy means your role truly no longer exists and is not required. Ask your employer for written evidence that the position has been eliminated, not just reassigned. Check if your duties are being redistributed to other employees or if a similar role is being advertised. Request documentation showing the business reasons for the redundancy, such as restructuring plans or financial reports.
What if my employer offers me a different role instead?
If your role is made redundant, your employer must offer you any suitable alternative vacancy before terminating your employment. The alternative role should be comparable in status and pay, and suitable to your skills and circumstances. You have the right to refuse an unsuitable alternative position, though refusing a suitable position may affect your redundancy entitlements.
Can I challenge a redundancy if I think it's discriminatory?
Yes. If you believe your redundancy is not genuine or is related to your pregnancy, you can lodge a general protections claim with the Fair Work Commission. You typically have 21 days from dismissal to lodge a complaint. You may also be able to make an unfair dismissal claim if you have worked for your employer for at least 6 months (12 months for small businesses).
What redundancy pay am I entitled to while pregnant?
If your redundancy is genuine, you are entitled to redundancy pay based on your length of service, notice period pay (or payment in lieu), any accrued annual leave, and any accrued long service leave. Redundancy pay ranges from 4 weeks pay (1 year service) to 16 weeks pay (9+ years). Being pregnant does not change your redundancy entitlements.
Will redundancy affect my maternity leave entitlements?
If you are made redundant before your parental leave begins, you will not have access to unpaid parental leave through that employer. However, you may still be eligible for government Paid Parental Leave Pay through Centrelink if you meet the work test and income test requirements. The work test requires working 10 of the last 13 months before birth.
