Employment & Pensions Blog: Extended protection from redundancy for employees on family leave

Following on from our update last week, we dive deeper into the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (the Act) that is expected to come into force from 6 April 2024.

The Current Law

Currently, in a redundancy situation, parents taking a period of maternity leave, adoption leave or shared parental leave have the right to be offered any suitable alternative employment. This right gives these employees priority access to redeployment options when compared to others also at risk of redundancy.  

What is Changing?

The proposed Act will extend this protection to cover pregnant employees, and for a period of 18 months after the birth or placement for adoption, for those taking maternity, adoption or shared parental leave. Therefore, an employee taking 12 months’ maternity leave will have protection for a further 6 months following their return to work. 

These proposed changes are intended to provide greater protection to new parents and expectant mothers against discrimination, offering them greater job security at an important time in their lives.

Who is Protected and When? 

Pregnant employees who take maternity leave

Protection will begin when the employer is notified of the pregnancy and will end 18 months from the child’s date of birth if notified to the employer before the end of maternity leave. In circumstances where the employer has not been notified, it will end 18 months from the expected week of childbirth.

Employees who have suffered a miscarriage 

For pregnancies ending before 24 weeks, protection will begin when the employer is notified of the pregnancy and will end 2 weeks after the end of the pregnancy. For pregnancies ending after 24 weeks, these are classed as “stillbirths” and the employee will be entitled to statutory maternity leave and therefore the protection for pregnant employees (as set out above) will apply.

Employees taking adoption leave

Protection will begin at the commencement of adoption leave and will end 18 months from the date of placement or the date of entry into Great Britain in cases of overseas adoption.

Employees taking shared parental leave

Protection will start at the beginning of shared parental leave and if less than 6 weeks of leave is taken, will end at the end of the leave period. In circumstances where more than 6 weeks of leave is taken, it will end 18 months from the child’s date of birth.

Further Regulations setting out how these changes will be implemented will follow in the coming months.

Implications for Employers

Employers who are considering potential restructures in the coming months will need to carefully think through the implications these upcoming changes may have on their proposed plans and consider any issues that may arise as a result. This is because the new protection will apply to pregnancies notified to employers on or after 6 April 2024 and maternity/adoption leave ending on or after 6 April 2024.

Employers will also need to ensure that their HR team and managers are well versed with these changes when supporting redundancy exercises. Providing timely training would be a good way of boosting awareness and mitigating the risk of potential claims for automatic unfair dismissal and discrimination. We would also encourage employers to conduct a review of their policies and procedures in good time to ensure that these changes are adequately captured.

It is important to note that these changes will not prevent women on maternity leave, or after it, from being made redundant if no suitable vacancy exists, nor would these changes require employers to go so far as creating new roles.

If you have any questions on this or would like some advice on the upcoming changes, please get in touch with a member of the Employment Team.