Protection Against Redundancy During and After a Period of Family Leave
At present, an employee who is on a period of maternity leave, adoption leave or shared parental leave is provided with special rights in relation to any redundancy situation that may arise during their period of family leave.
Currently, the law states that an employee who is on a period of family leave, has the automatic right to be offered any suitable alternative vacancies that may arise as part of the redundancy process.
This is actually a rare occasion of lawful positive discrimination as it means that, in a redundancy situation involving a number of employees and one on maternity leave for example, the employee on maternity leave has the priority right to be offered the suitable alternative role without having to go through a recruitment or application process as the employees not on family leave may need to.
At present, this protection lasts for the period of maternity, adoption or shared parental leave. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 came into force in summer 2023 and provided the Government with the power to make regulations to extend these redundancy protection provisions.
In December 2023, draft regulations, Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were laid before Parliament for consideration on this point. If passed, as currently drafted, the regulations would extend redundancy protection to the following ‘protected periods’:
- Pregnant employees will be protected from the date they inform their employer about their pregnancy. If the employee is entitled to statutory maternity leave, the protected period will end on the day statutory maternity leave starts. If the pregnancy ends and the employee is not entitled to statutory maternity leave, then the protected period will end two weeks after the end of the pregnancy.
- Employees on maternity leave will be protected for a period of 18 months from the expected week of childbirth or actual date of birth if notified to the employer.
- Employees on adoption leave will also be protected for a period of 18 months after the child’s placement with them.
- For anyone taking 6 or more consecutive weeks of shared parental leave, the protected period ends 18 months after the child’s date of birth or adoption placement.
If passed, the new protected periods are expected to apply from 06 April 2024. In practice this will therefore apply where a pregnant employee notifies their employer of pregnancy on or after this date. In terms of the protected period for family leave, it will apply to a period of family leave ending on or after 06 April 2024 and six consecutive weeks of shared parental leave starting on or after 06 April 2024.
Currently the draft regulations are still waiting to be considered by Parliament after being presented on 11 December 2023. There has been no indication of when these will be considered however, we will keep you up to date with the progress of the proposed regulations.
If you have any questions about protection in redundancy situations or any other employment related matter, please speak with one of our Employment Law team on 01246 555 111 or contact:
Amy Hallam
Head of Employment
t: 0114 3496989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Associate
t: 01246 564002
e: ellie.leatherday@brmlaw.co.uk
Jade Taylor
Trainee Solicitor
t: 01246 560587
e: jade.taylor@brmlaw.co.uk
