April brought with it a raft of updates to employment law rates, including increases to the national minimum wage and Tribunal awards (see our update here for more information). In addition, redundancy protection was extended for those taking certain types of family related leave.
For many years employees taking maternity, shared parental or adoption leave have had enhanced rights giving them preferential treatment against being made redundant compared to other employees. In effect, they have the right to be offered any suitable alternative vacancies over other employees not on leave who are also at risk of redundancy. This is a rare example of lawful positive discrimination.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends the right to be offered a suitable alternative vacancy in a redundancy situation to pregnant employees and those who have recently returned from periods of maternity, shared parental (“SPL”), or adoption leave.
We look at each of these below:
Pregnancy
The protected period of pregnancy starts when the employee tells their employer that they are pregnant. This may be whilst they are pregnant or once the pregnancy ends. The protected period will end when statutory maternity leave begins, or if the employee is not entitled to take maternity leave, two weeks after the pregnancy ends.
The protection applies where an employee notifies their employer of their pregnancy on or after 6 April 2024. It is unclear whether an employee who has already notified their employer of their pregnancy before 6 April 2024 needs to notify them again after 6 April in order to be protected. We suggest employers assume that employees who gave notification of their pregnancy before 6 April 2024 will be eligible for the same protection as employees who notify their employer after 6 April.
An employee who suffers a miscarriage or stillbirth is also protected. If an employee has a miscarriage within the first 24 weeks of pregnancy, their protected period will end 2 weeks from the end of the pregnancy. If a child is miscarried, or stillborn after 24 weeks of pregnancy, the employee’s protected period will end 18 months from the date of the miscarriage or stillbirth.
Maternity leave
The rights of employees on maternity leave who are at risk of redundancy remains the same – they will continue to be protected whilst they are on maternity leave. However, their period of protection will now end 18 months after the baby’s birthdate*. Employees will only be entitled to this additional protection if their statutory maternity leave ends on or after 6 April 2024.
Shared parental leave
Before April, employees taking SPL had the same redundancy protection rights as those on maternity leave – the right of first refusal for any suitable alternative vacancy if placed at risk of redundancy. Whilst those employees who take less than 6 weeks SPL will see no change to their rights, those who take more than 6 weeks will be protected for 18 months from their child’s birthdate* or date of placement. Whilst to date the uptake of SPL has been low, this may now change.
Adoption leave
As with maternity leave and SPL, before 6 April 2024 an employee taking adoption leave had protected rights in a redundancy situation from the day their adoption leave began. This remains unchanged, however, their protected period will now be longer and run for 18 months from the date the adoption placement starts (or, in the case of an overseas adoption, the date the child enters England, Scotland or Wales).
*Birthdate – this is the date the child is born, however, if the employee does not tell their employer the exact date of their child’s birth, it is the expected week of childbirth.
Practical steps for employers
Employers should ensure those involved in carrying out redundancy consultations are aware of the changes and update internal policies and procedures accordingly. What should an employer do if there are more employees with ‘priority status’ than suitable alternative vacancies available? In that case, employers may have to decide who is most suitable for the role based on objective criteria such as skills, knowledge and experience or by conducting interviews.
HR records will also need to be accurate, reviewed on a regular basis and flagged to ensure that protected rights are not overlooked if a redundancy situation arises. Doing so could be costly, as an employer who fails to offer a suitable alternative vacancy to a ‘protected’ employee may find themselves facing a claim for automatic unfair dismissal and/or a discrimination (neither require two years’ service and compensation limits are uncapped).
For advice on carrying out a redundancy process or what the above changes mean for your business, contact our specialist employment team here.