Protection from Redundancy (Pregnancy and Family Leave) Act 2023

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 has received Royal Assent. As the name suggests, the Act extends the protection provided to pregnant women, new parents and those on adoption or shared parental leave. These new rights come into force on 6 April 2024 and will affect employers and employees in England, Scotland and Wales.

Employees on maternity, adoption or shared parental leave are currently protected (to a large degree) from redundancy. If available, a suitable alternative vacancy must be offered before a redundancy is made. However, the employee’s view of ‘suitable’ make differ from that of the employer…

The Protection from Redundancy (Pregnancy and Family Leave) Act extends the priority status for those who are pregnant, suffer a miscarriage, take adoption leave or take shared parental leave. There are many implications for employers, but before taking a look at those, let’s clarify who gets what protection.

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

Protection from Redundancy – Categories & length of protection

Pregnant and taking maternity leave

Redundancy protection starts as soon as the employer has been informed of the pregnancy. While the regulations do not state the form of notification required, it seems sensible to assume that a chat with a relevant line manager or HR will suffice. If pregnant staff feel a company restructuring is imminent, they could inform their employer of their situation prior to their 12-week scan. Protection ends 18 months from the child’s date of birth*.

Miscarriages

In these distressing cases, calculating the correct dates will need to be handled sensitively. Protection starts when the employer has been notified of the pregnancy and ends 2 weeks after the end of the pregnancy if the pregnancy ends before 24 weeks. If the pregnancy ends after 24 weeks the employee is entitled to statutory maternity leave and the rules above apply.

Adoption leave

Protection starts at the beginning of adoption leave and ends 18 months from the date of placement. In the case of an overseas adoption, the date of entry into Great Britain is key.

Shared parental leave (SPL)

Protection begins at the start of SPL. If less than 6 weeks of SPL is taken, then protection ends at the end of SPL. In instances where more than 6 weeks of continuous SPL is taken, protection ends 18 months from the child’s date of birth. This is interesting, as by taking only 6 weeks of continuous SPL, the employee is eligible for 18 months protection.

One noticeable omission from the above list is those on paternity leave. Even fathers who decide to tack on 4 weeks of annual leave to their 2 weeks of paternity leave are not eligible for any protection.

Employers should remember that the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 is not a ban on making qualifying employees redundant during their protected period. It is designed to give priority for redeployment and in the allocation of an alternative role. 

Plan ahead for the Protection from Redundancy (Pregnancy and Family Leave) Act 2023

According to the Office for National Statistics there were 824,983 conceptions for women of all ages in England and Wales in 2021. Women aged 30 – 34 years enjoyed the highest conception rate, so it is hard to imagine that the majority of these were not in work. This new Act will undoubtedly affect a large number of employers and employees.

If you are planning to restructure a business the imminent changes in redundancy protection need to be carefully considered. From 6 April 2024 these new protections apply. It’s currently unclear as to whether an employee who has notified an employer prior to 6 April of their pregnancy can gain extra redundancy protection rights by providing a further notification after 6 April. At this stage it makes sense to assume that they can.

Not only will more employees be afforded priority status, new and expectant mums will enjoy a longer period of redundancy protection. For example, if an expectant mum informs her employer of her pregnancy at 12 weeks, takes 12 months maternity leave, and then benefits from a further 6 months of protection, that equates to around 2 years of redundancy protection.

Keeping track of information

Employers certainly face additional administration. Keeping track of notifications, birth dates and protection end dates will be no easy task. An unintended consequence of the Act may also be an uptake in shared parental leave particularly in times of economic uncertainty. Who would not want extra employment protection with a new addition to the family?

Employers may also be faced with some tough decisions. A high-performing employee may have to be let go while an employee who performs at a lower level and qualifies for redundancy protection is retained. A woman returning from a year on maternity leave may feel at a disadvantage to a man who took a brief period of shared parental leave. Situations such as these need careful handling.

There will also be more of a need to identify potential job roles and vacancies across a business (including any other companies in the group). With more employees eligible for priority status an employer may need to adapt their systems.

Penalties for non-compliance

If an employer fails to offer a priority employee a suitable vacancy, the employee could claim for an automatic unfair dismissal. In cases such as these, compensation is not capped, and the employee does not require two years of qualifying service. The employee may also have a claim for discrimination. Compliance with the act is crucial.

Protection from Redundancy (Pregnancy and Family Leave) Act – Summary

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 modifies the Employment Rights Act 1996. From 6 April 2024, a wider range of individuals will enjoy redundancy protection during pregnancy or while on family leave. The employees who can benefit from the additional safeguards are;

  • Pregnant employees
  • Those suffering from a recent miscarriage
  • Those returning from maternity leave, adoption leave and shared parental leave

Always remember that the Protection from Redundancy (Pregnancy and Family Leave) Act is not a ban on making qualifying employees redundant during their protected period. However, employers need to put procedures and safeguards in place and identify any staff training issues. If you require further assistance, please contact us today to book a complimentary 30 minute consultation.

 

*The exact date depends on whether the employer is notified before the end of maternity leave.

Find out more about the Neonatal Care (Leave and Pay) bill.