New rules come into force on 6 April 2024 that will significantly extend the rights of employees who are pregnant, or are returning from periods of maternity leave, adoption leave or shared parental leave. Employees who fall into any of these categories will be protected in redundancy situations by the right to be offered a suitable alternative vacancy where one exists. This right is already available to employees who are actually on maternity, adoption or shared parental leave, but the change will extend the length of the period of protection as set out below. The period of protection after returning to work from relevant leave will be known as the ‘additional protected period’.
How exactly are the different categories of leave affected by the changes?
PREGNANT EMPLOYEES
Redundancy protection will start when an employee tells their employer about their pregnancy. If the employee is entitled to statutory maternity leave, the protected period of pregnancy will end on the day the statutory maternity leave starts. If the pregnancy ends and the employee is not entitled to statutory maternity leave (eg if the employee has a miscarriage before 24 weeks of pregnancy), the protected period ends two weeks after the end of pregnancy. These new rules would apply where the employee notifies their employer of their pregnancy on or after 6 April 2024 (and thus may catch employees who are already pregnant and notify their employer of the fact after 6 April).
EMPLOYEES WHO HAVE TAKEN MATERNITY LEAVE
In relation to maternity leave ending on or after 6 April 2024 the additional protected period will end 18 months after the expected week of childbirth (‘EWC’), unless the employee has informed the employer of the date of their child’s birth, in which case the additional protected period will end 18 months after that date. It does not matter how long the period of maternity leave the employee takes – the protection still ends 18 months after the EWC/actual date of birth.
EMPLOYEES WHO HAVE TAKEN ADOPTION LEAVE
In relation to adoption leave ending on or after 6 April 2024 the additional protected period ends 18 months after the child’s placement, or the date the child enters Great Britain (in the case of overseas adoptions). It does not matter how long a period of adoption leave the employee takes – the end date of protection is 18 months from placement/entry into Great Britain.
EMPLOYEES SHARED WHO HAVE TAKEN PARENTAL LEAVE
In relation to employees who have not taken maternity or adoption leave but have taken periods of shared parental leave exceeding six weeks that end on or after 6 April 2024, the additional protected period ends 18 months after the date of the child’s birth or placement (or date they enter Great Britain).
What should employers do?
Employers will need to factor these additional rights into the planning of redundancy exercises irrespective of their size or scope. They will need to earmark vacant positions, not only for those who are on leave (as current rules require), but also for pregnant women and those who have recently returned from a period of leave. This significantly extends the group of employees who are given priority over other employees who are also at risk of redundancy and who are given what is, in effect, the benefit of a form of positive discrimination. Employers who do not comply with the new rules will be exposed to claims for automatic unfair dismissal under section 99 of the Employment Rights Act 1996 from employees who have the right to priority treatment.
Employers may also want to review their policies and handbooks to ensure that they reflect the new rules as well as recent changes we have reported on to statutory paternity leave and carers’ leave.
For further information, please contact:
Meriel Schindler, Partner, Withersworldwide
meriel.schindler@withersworldwide.com
