Currently, employees in the UK on statutory maternity, adoption or shared parental leave who are at risk of redundancy have priority rights to be offered a suitable alternative vacancy (but only where such a vacancy exists).
New regulations have been introduced to extend redundancy protections, both before (for pregnant employees only) and after the return to work. These regulations arose in response to research that found that mothers returning from maternity leave still faced discrimination in the workplace after returning from leave.
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 will come to effect on April 6, 2024, and will mean the protection in redundancy situations is as follows:
- Pregnant employees will have this protection from the point they inform their employer of the pregnancy (provided that is on or after April 6, 2024) until maternity leave starts. In rare cases where the employee is not entitled to statutory maternity leave, the protection ends two weeks after the end of the pregnancy.
- The protection continues during maternity leave and on their return to work for the period of 18 months from the date of childbirth (or 18 months from the first day of the expected week of childbirth if the employer has not been informed of the actual date of childbirth).
- Employees on statutory adoption leave will have this protection during the leave and on their return to work for the period of 18 months after the date the child is placed with the employee for adoption (or enters Great Britain if an overseas adoption).
- Employees taking statutory shared parental leave are protected during that leave and, if the employee has taken more than six consecutive weeks of shared parental leave, on their return to work for the period of 18 months after the date the child is born or placed with the employee for adoption (or enters Great Britain if an overseas adoption).
- If the employee has taken maternity or adoption leave before switching to shared parental leave, they will benefit from the protections for maternity or adoption leave.
These changes will be effective for employees whose statutory maternity, adoption, or shared parental leave ends on or after April 6, 2024, so will apply to some employees currently on leave or due to shortly start leave. The protection for pregnant employees before leave, however, only applies where the employee informs their employer of the pregnancy on or after April 6, 2024.
Next steps for employers
Failure to offer available suitable alternative vacancies to protected employees may result in the dismissal being automatically unfair, and also creates a risk of discrimination claims (where compensation is uncapped).
Employers should be mindful of these changes when implementing redundancies on or after April 6, 2024 as the numbers of employees protected will likely be much higher. One consequence of the change is that there is an increased risk of there being more protected employees at risk of redundancy than there are available suitable alternative vacancies. This is a complex problem, and the right solution will vary depending on all the facts. We recommend taking detailed advice if this situation arises.
* Hannah Drury is a paralegal at GQ|Littler.
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.
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