From 6 April 2024, the law will change to enhance the redundancy protection afforded to employees in certain scenarios.
Currently employees on maternity, adoption or shared parental leave whose role become redundant are entitled to be offered a suitable alternative vacancy (where there is one) in preference to other potentially redundant employees. This is a comparatively rare example of lawful positive discrimination referred to as “enhanced protection” from redundancy.
The changes to the law that come into force on 6 April 2024 will expand the enhanced protection to employees who are in the following “protected periods” (subject to the rules within the new legislation as to from when the enhanced rights come into effect which is explained below):
- During Pregnancy – from the date the employee informs the employer of their pregnancy until either the start of statutory maternity leave or, for those employees not entitled to statutory maternity leave, two weeks after the end of the pregnancy.
- Following maternity leave – from the end of maternity leave until the end of the period of 18 months after the first week of the expected week of childbirth or the date 18 months after the child’s birth date where the employer is informed by the employee of the birth date.
- Following adoption leave – from the end of statutory adoption leave until 18 months after the child’s placement or the date they enter Great Britain for overseas adoptions.
- Following shared parental leave – where an employee takes six or more consecutive weeks of shared parental leave and has not taken maternity or adoption leave, the protection starts after the end of the shared parental leave period of six or more consecutive weeks and ends 18 months after the birth date or, in adoption cases, 18 months after the child’s placement date or the date after the child enters Great Britain for overseas adoptions.
The new rules above apply as follows:
- In relation to pregnancy, where an employee notifies their employer of their pregnancy on or after 6 April 2024;
- in relation to the period after maternity or adoption leave, where the relevant leave ends on or after 6 April 2024; or
- in relation to the period after shared parental leave, where a period of shared parental leave of six or more consecutive weeks started on or after 6 April 2024.
Given that many more employees will benefit from enhanced protection against redundancy from 6 April 2024, it would be advisable for employers undertaking redundancy exercises to check which potentially redundant employees benefit from enhanced rights at the start of a redundancy exercise.
It is not difficult to envisage employers facing claims for automatic unfair dismissal and/or discrimination because of pregnancy and maternity, which they are unable to successfully defend, because they did not take into account the enhanced protection from redundancy certain employees who were at risk had. This could be, for example, where the employer was simply unaware of the extension of the right to enhanced protection from redundancy or where they did not check whether any of their potentially redundant employees benefitted from the enhanced protection or not.
Those employers with redundancy policies or procedures should consider updating them to reflect the changes to the law from 6 April 2024 or to build into any internal procedures a step ensuring checks are undertaken to assess whether any potentially redundant employees benefit from enhanced protection. All employees will need to be mindful of the extension of the enhanced protection so as to avoid sleepwalking into potentially costly claims.
For more information or advice on this or any other Employment Law & HR issue, please get in touch with James Symons on 0115 9 100 250, or send him an email.
Posted on March 26, 2024
