In a progressive stride towards workplace equality and employee rights, legislative reforms have been introduced to extend the current redundancy protection to pregnant employees and employees on maternity, adoption or shared parental leave (‘priority employees'). Effective from 6 April 2024, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (the “Act”) modifies existing safeguards under the Employment Rights Act 1996, extending the protected period and also ensuring that wider groups are offered suitable alternative vacancies (where available) in the event of redundancy. The impetus behind these changes was fuelled by a collective call for heightened job security during pregnancy and a reduction of discrimination in the workplace.
Pregnancy Protection
The Act protects pregnant employees from the date that the employee notifies their employer of their pregnancy (which must be on or after 6 April 2024) and ends either on the day that the statutory maternity leave starts or 2 weeks after the end of the pregnancy. In the event that an employee suffers from a miscarriage before 24 weeks of pregnancy, they will have protection during their pregnancy as well as a further 2 weeks following the miscarriage. If they have a stillbirth (miscarry after 24 weeks of pregnancy), they will be entitled to maternity leave and will have the same protection as any other priority employee taking maternity leave.
Maternity Leave
The Act has also introduced that employees going on maternity leave will now be protected for a duration of 18 months, commencing from the first day of the estimated week of childbirth. Notably, this 18-month period can be adjusted to start from the child's actual date of birth if the employee provides written notice to the employer of the date during their maternity leave period.
Adoption Leave
The Act ensures that employees on adoption leave will be protected for an extended period of 18 months from the date of placement for adoption (or, if adopted overseas, the adopted child's entry into the territory). Protection is afforded when the adoption leave ends on orafter 6 April 2024. By extending this protection to parents to adopted children, the Act underscores the importance of inclusivity and support within the workplace.
Shared Parental Leave
Employees on shared parental leave will be safeguarded under the Act for 18 months from the adopted child's birth or from the placement for adoption, on the condition that the employee has taken a period of at least 6 consecutive weeks of shared parental leave. Protection is afforded when the period of 6 consecutive weeks of shared parental leave starts on or after 6 April 2024. However, note that shared parental leave protection will not apply if the employee has already sought protection under either the maternity or adoption provisions outlined above.
Next Steps for Employers
With the protected period extended and a heightened number of employees potentially eligible for ‘priority status', employers must adopt robust systems to identify suitable alternative vacancies. Employers are urged to review their existing policies and procedures as soon as possible to ensure that they cover those who are pregnant or on maternity, adoption or shared parental leave to reflect the upcoming changes. Dan Jarvis, a Labour MP, highlighted the importance of employers adhering to these new rules in the second reading in the House of Commons, and stated that existing safeguards “are not being applied correctly, and are sometimes not observed at all”. Therefore, managerial awareness training is strongly advised. While the legislation does not prohibit employers from making a priority employee redundant, it mandates adherence to correct procedures and due diligence in redundancy decision-making. Should an employer fail to offer a priority employee in their protected period a suitable alternative vacancy, the employee could have a claim for discrimination or an automatic unfair dismissal (which attaches an uncapped compensatory award). Given the significant penalties, this is therefore a material change in the law and employers will need to ensure that they are compliant.
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