From 6 April 2024, draft Regulations extend further the current right of employees on maternity, adoption, and shared parental leave who are at risk of redundancy, to be offered suitable available employment in preference to other employees who are also at risk, but not on such leave.
The protection will apply to pregnant employees from the moment they notify their employer of their pregnancy. Currently the right lapses upon return from maternity leave for example. The enhanced right, however, will afford protection to pregnant employees, and those who are on or have returned from such types of leave, for a period of 18 months from their child's birth/placement for adoption. For a maternity leaver who has availed herself of her full 12 months' maternity leave entitlement, this means protection extends for a further 6 months after her return.
These new rules will apply to any pregnancies notified to the employer on or after 6 April 2024 and in respect of the additional protected period after the end of maternity leave, to any maternity leave ending on or after 6 April 2024. It will also be applicable for adoption leave or relevant shared parental leave ending on or after 6 April 2024.
An employee taking adoption leave is protected from the beginning of their adoption leave until 18 months from the date of the child's placement with the employee (or from the child's entry into Great Britain if they have been adopted from overseas).
An employee who has taken less than six continuous weeks of shared parental leave is entitled to enhanced redundancy protection only for the period of leave that they take. However, if leave of 6 consecutive weeks or more is taken, is taken, they are entitled to protection from the start of their shared parental leave until 18 months from the date of the child's birth/placement for adoption (or from the child's entry into Great Britain if they have been adopted from overseas).
If an employee has taken maternity or adoption leave before taking shared parental leave they are only entitled to the protected period for the original period of maternity or adoption leave.
How can you prepare for this change?
Please note that as the Regulations are still in draft form at present, they may be subject to change.
Assuming they are enacted in current form, whilst the new Regulations do not prevent individuals taking the above types of leave from being made redundant, provided always of course that the reason for their selection is fair and unconnected with the taking of the leave, their new enhanced rights will need to be considered.
An employer should review their current redundancy processes as care will need to be taken to ensure that managers are aware of these new rights and that these are accounted for in any restructuring exercises where redundancies are being proposed. In addition, an employer may want to consider putting in place systems to identify vacancies across the organisation and any group companies (if applicable) to ensure these are not overlooked and are offered as appropriate to qualifying employees.
Should an employer fail to offer suitable alternative employment (where vacancies exist) to a protected employee then they will risk a claim being brought for automatic unfair dismissal as well as a possible discrimination claim, in either case where compensation could be uncapped.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
