Extended redundancy protection for pregnant employees and new parents

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 received royal assent on 24 May 2023 giving the government the power to extend redundancy protection for pregnant employees and parents who have taken statutory parental leave.

The Maternity, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 will implement the detail of these changes and come into force on 6 April 2024.

What does this mean for employers?

The current position

Regulation 10 of the Maternity and Paternity Leave Regulations 1999 requires employers to offer suitable alternative employment (where a vacancy exists) to an at-risk employee who is on maternity leave, shared parental leave or adoption leave. This protection currently applies only whilst the employee is on statutory leave. The employee should be given ‘first refusal’ of the vacancy even if they are not the strongest or most suitable candidate for the role.

The priority right to a suitable alternative vacancy arises when the employee has been selected for redundancy (not simply when a redundancy situation arises in the workplace). Depending on the number of employees involved and the nature of the exercise, it can be difficult to pinpoint exactly when this entitlement ‘kicks in’.

What are the changes?

Pregnant employees who take maternity leave

The protection commences when the employer has been notified of the pregnancy and extends until 18 months from the date of the child’s birth. This period includes any time spent on maternity leave or other statutory leave.

Where an employee is returning from any type of statutory family leave, the new rules apply to any period of leave ending on or after 6 April 2024.

Employee who has suffered a miscarriage

The protection commences when the employer has been notified of the pregnancy and extends until 2 weeks after the end of the pregnancy, where the pregnancy ends before 24 weeks. The new rules apply to any pregnancy notified on or after 6 April 2024.

Employees taking adoption leave

The protection commences at the start of the adoption leave and extends until 18 months from the date of the child’s placement. This period includes any time spent on adoption leave or other statutory leave.

Employees taking shared parental leave

If the employee has taken maternity leave or adoption leave, then the above provisions apply. If not,  then the protection applies at the commencement of shared parental leave (SPL). 

If the employee has taken less than 6 weeks SPL then the protection ceases at the end of the SPL. If the employee has taken more than 6 weeks continuous SPL then the protection is 18 months from the child’s date of birth. This includes any time spent on statutory leave. The new rules apply to a period of 6 consecutive weeks SPL starting on or after 6 April 2024.

Comment

These reforms have been in the pipeline for a long time. The recommendation to extend redundancy protection for pregnant employees and new parents was first made formally in a Women and Equalities Select Committee (WESC) Report back in 2016, which concluded that discrimination against this group was still startlingly prevalent in the UK labour market. The proposals were subject to public consultation for six months in early 2019.

It is important that managers are made aware and provided with training on the upcoming changes. Further, it is important that any family friendly or redundancy policies are updated to take into account the new legislation. If your organisation is currently part way through a restructure exercise, it is important to pause and consider whether any affected employees will acquire additional protection.

Employment claims involving a breach of this right are likely to include automatic unfair dismissal (which does not require the usual two years of qualifying service) and pregnancy/maternity discrimination (with potentially uncapped compensation).

However, even with this extended protection in place, it is important to remember that, if there is a genuine redundancy situation and a fair procedure is followed, an employer is still entitled to make an employee redundant, even while they are absent on maternity or other statutory leave. However, it is crucial to ensure that the employee has not been selected for a pregnancy or maternity-related reason, and that any selection criteria applied do not discriminate indirectly.

As protection from redundancy in this context will soon be broader and last longer, employers are more likely to come across a situation where more than one ‘at-risk’ employee qualifies for priority access to a suitable alternative vacancy at the relevant time. If you find yourself in this very difficult situation, we would be happy to support you.