Changes to the rules on redundancy protection extended to cover pregnancy and return from family leave
Under the new provisions, which come into force on 6 April 2024, employees who are pregnant or returning from maternity, adoption or shared parental leave (SPL), will gain priority status for redeployment opportunities in a redundancy situation.
There are already protections in a redundancy situation for employees on maternity leave, adoption leave, or SPL. They have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This protection affords employees on these types of leave priority access to redeployment opportunities over other at-risk employees.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 and Regulations to implement the reforms, extend the priority status to pregnant employees and those who have recently returned from maternity or adoption leave and SPL. Where, during the protected period, it is not practicable by reason of redundancy for the employer to continue to employ the employee under their existing contract of employment, then the employer must offer the employee any suitable available vacancy that exists with either:
- the employer
- the employer’s successor, and/or
- any associated employer
This applies even if other employees are more suitable for the role.
The changes will apply in England, Wales and Scotland and will coincide with amendments to other family-friendly rights such as flexible working, the introduction of carer’s leave, and changes to paternity leave.
The following summary sets out who is protected and the period of protection:
| Who is protected | When the period begins | When the period ends |
|---|---|---|
| Pregnant employee | When the employer has been notified of pregnancy. | If the employee is entitled to maternity leave, it ends on the day on which the statutory maternity leave period begins. If the employee is not entitled to maternity leave, it ends at the end of the period of two weeks beginning with the end of the pregnancy. |
| Employee who has suffered a miscarriage | When the employer has been notified of pregnancy. | Two weeks after the end of the pregnancy, for pregnancies ending before 24 weeks. Pregnancies ending after 24 weeks are classed as stillbirths and the employee would be entitled to statutory maternity leave. |
| Employee after taking maternity leave | The day after the last day of the statutory maternity leave period and continues during any period of continuous employment that includes the statutory maternity period. | 18 months after the expected week of childbirth(EWC), or If the employee notifies the employer (in writing if the employer so requests) of the date of the child’s birth before the end of the statutory maternity leave period or as soon as reasonably practicable after that date, 18 months after the date of the child’s birth. This includes any time spent in this period on maternity leave or other statutory leave. |
| Employee after taking adoption leave | The day after the last day of the statutory adoption leave period and continues during any period of continuous employment that includes the statutory adoption period. | 18 months from date of placement or date of entry into Great Britain (if overseas adoption). This includes any time spent in this period on adoption leave or other statutory leave. |
| Employee taking shared parental leave (SPL) | Beginning of SPL. | If less than six weeks of SPL is taken, at the end of SPL. If more than six continuous weeks of SPL is taken, 18 months from child’s date of birth or placement for adoption. If the employee has also taken maternity or adoption leave, the above periods apply instead. |
KEY CONSIDERATIONS
1. Employers considering or planning restructuring
Employers will need to ensure they have properly considered the implications of the new protections and the issues that may arise if contemplating redundancies. The additional protection applies to pregnancies notified to an employer on or after 6 April 2024 (see point below regarding notification prior to 6 April 2024) and maternity/adoption leave ending on or after 6 April 2024. In respect of SPL, the new extended protection applies to employees taking at least six weeks of SPL which begins on or after 6 April 2024.
2. What happens if a current pregnant employee notified the employer prior to 6 April 2024?
There are no transitional provisions expressly stating that employee notices given before 6 April 2024 apply in relation to the new rules applicable from 6 April 2024. However, there are also no express provisions excluding an employee who had already notified the employer of the pregnancy before 6 April from notifying the employer again after 6 April. Although it could be argued that an employer who has been ‘informed’ of an employee’s pregnancy before 6 April continues to be so ‘informed’ after that date, it may be wise for affected employees to re-inform their employer on or shortly after 6 April 2024. Given the uncertainty, it is possibly safest for employers from a risk and employee relations perspective, to assume that any employees already known to be pregnant may be protected from 6 April 2024.
3. Calculating, recording and triggering of protection periods
Given the various start and end points in protection, employers are advised to keep accurate records regarding pregnancy and birth notifications (including sadly, any miscarriages), and statutory leave dates, to calculate protection periods accurately.
4. What happens if there are more priority employees than alternative vacancies?
After 6 April 2024, the numbers of employees with priority status at any one time are likely to increase, causing possible issues for employers.
There is no legal provision on how to proceed where there are more employees with priority status than there are suitable alternative vacancies. The legislation only states the employee’s entitlement to be offered a suitable alternative vacancy where there is one available. Therefore, the employer will have to consider for whom the job is most suitable.
In terms of selection, one form of protection does not take priority over another. Therefore, employers would need to undertake a further selection process between the employees with priority status ensuring that any process is transparent and fair in all the circumstances.
There is no legal provision on how to proceed where there are more employees with priority status than there are suitable alternative vacancies. The legislation only states the employee’s entitlement to be offered a suitable alternative vacancy where there is one available. Therefore, the employer will have to consider for whom the job is most suitable.
In terms of selection, one form of protection does not take priority over another. Therefore, employers would need to undertake a further selection process between the employees with priority status ensuring that any process is transparent and fair in all the circumstances.
5. Can a protected employee be made redundant?
It is important to note, that the protection under the existing or new law only gives employees priority for redeployment opportunities; it does not prevent making employees redundant during the protected period provided such redundancies are carried out lawfully in all other respects.
Employees who are pregnant or on maternity leave are also protected from discrimination under the Equality Act 2010 until the end of maternity leave. Employers are advised to keep this in mind whenever considering and carrying out a redundancy exercise and will need to be careful not to discriminate against employees, by treating them unfavourably during that protected period.
Employees who are pregnant or on maternity leave are also protected from discrimination under the Equality Act 2010 until the end of maternity leave. Employers are advised to keep this in mind whenever considering and carrying out a redundancy exercise and will need to be careful not to discriminate against employees, by treating them unfavourably during that protected period.
6. Identifying suitable vacancies
With an increase in the number of employees who could be eligible for priority status, employers will need to adopt systems for identifying potentially suitable vacancies across their operations, including any other companies in their group. Since the pandemic, and the rise of remote and hybrid working, along with enhanced flexible working rights, it will likely mean in many sectors that the scope for potentially suitable roles will be wider.
7. Awareness and manager training
There are very good arguments from a policy perspective in favour of protecting new and expectant parents from discrimination in the workplace and avoiding them having to compete for redeployment opportunities at a vulnerable time. This is borne out in statistics. The last major government research found 77% of mothers experienced negative and possibly discriminatory treatment during pregnancy, maternity leave or return to work.
Nonetheless, there are likely to be individual instances where the rules may feel unfair to employees and managers, whether that is because a better candidate on paper is not redeployed, a father taking paternity leave is not protected, or some other reason. All of this will need to be managed carefully, and employers are advised to ensure that HR professionals and managers are aware of the rules and have the training they need to improve their skills
and confidence in managing these situations.
Nonetheless, there are likely to be individual instances where the rules may feel unfair to employees and managers, whether that is because a better candidate on paper is not redeployed, a father taking paternity leave is not protected, or some other reason. All of this will need to be managed carefully, and employers are advised to ensure that HR professionals and managers are aware of the rules and have the training they need to improve their skills
and confidence in managing these situations.
8. Is SPL uptake likely to increase as a result of the additional protections?
The use of SPL has been very low since its introduction in 2015. Whilst this new protection is unlikely to prompt a significant change in uptake, it may be that more employees will be interested in doing so given the additional protections during difficult economic times to avoid redundancy, and more so if their employer offers enhanced pay during SPL.
9. What are the penalties for getting it wrong?
A failure to offer a priority employee a suitable alternative vacancy would mean the employee has a claim for an automatic unfair dismissal, which does not require two years’ service and the compensation is not capped. The employee may also have a claim for discrimination. Given the significant risk and potential liability, employers are advised to consider these protections ahead of and during any redundancy exercise.
10. What next?
Employers are advised to review their policies to ensure they incorporate the upcoming changes and inform/train staff accordingly.
Whether you are an employer or employee, for more help with redundancy protection rights, please contact the employment law team at Lennons – call 01494 773377.
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