New regulations that took effect in England, Scotland and Wales on 6 April 2024 which extended existing redundancy protections to pregnant women and those returning to work after taking maternity, adoption or shared parental leave. The legislation remains unchanged in Northern Ireland at present (and mirrors the legislation that applied in Great Britain prior to 6 April 2024).
The new amended legislation in Great Britain extends the priority right of an employee selected for redundancy to be offered a suitable alternative vacancy where they have informed their employer they are pregnant, as well as during an additional six-month protected period after returning to work from maternity leave, adoption leave or shared parental leave. Women who miscarry before informing their employer they are pregnant are also covered where they inform their employer of the pregnancy within two weeks thereafter.
As before where the employee is placed at risk of redundancy and there is a suitable available vacancy during this extended protected period, the employee is entitled to be offered the job without having to go through a competitive selection process.
This provision gives the protected employees priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination for certain employees. If the employer does not comply with this requirement, an employee who is dismissed due to redundancy will have a claim for automatically unfair dismissal.
For example, in a restructuring exercise, two employees’ roles were placed at risk of redundancy. One of those employees at that time was on maternity leave. Both were suitable candidates but, following interview for the new vacant role, the male employee was considered the better candidate and the employee on maternity leave was made redundant. In an employment tribunal case, the redundant employee successfully claimed that her dismissal was automatically unfair as the alternative employment was suitable for her, so she should have been offered it.
What do employers need to do to comply?
Employers embarking on redundancy or restructuring exercises need to be aware of this legal extension to the period of redundancy protection. They should ensure they have noted during the redundancy consultation process any employees who have informed their employer they are pregnant or who have recently returned from certain types of family leave. Given the longer period of protection, this priority right to suitable alternative employment could be overlooked.
This is important because a failure to give a priority right to any existing suitable vacancies in a redundancy exercise can result in a redundancy dismissal being automatically unfair (although not necessarily discriminatory), putting the employer at risk of an unfair dismissal award, even if the employee has, in all other respects, been fully consulted on the redundancy prior to their dismissal.
Where the employer decides not to offer an employee in their protected period an alternative role, the employer should document the reasons why the employer considers the role is not a suitable alternative employment for the employee and be prepared to be challenged on this in the event of a dispute.
It may of course often be the case, particularly in smaller businesses, that an alternative vacancy may simply not exist, in which case, of course, this legal duty is not triggered.
The ECHR has published a toolkit, which is particularly helpful for small business employers, summarising employers’ legal obligations around pregnancy and maternity leave, including this extended protection during redundancy: https://www.equalityhumanrights.com/guidance/pregnancy-and-maternity-pregnancy
The guidance also highlights the statutory right for all employees in Great Britain to request flexible working from day one of employment. Different legislation and guidance applies in Northern Ireland.
New legislation allowing fathers to split their two weeks’ paternity leave over a longer 52-week period also came into effect in Great Britain on 6 April 2024. Additionally, under new legislation, which is proposed to come into effect in Great Britain in 2025, parents who are qualifying employees whose baby is admitted to neonatal care will be entitled to 12 weeks’ paid neonatal leave.