Extension of redundancy protection during pregnancy and after family related leave in force from 6 April 2024

The extension means that the existing protection will also apply to pregnant women and to new parents who have recently returned from any period of maternity or adoption leave, or from a period of 6 or more weeks of shared parental leave, and this will be known as the “additional protected period”.

We refer to maternity, adoption and shared parental leave collectively as “family related leave” in this update.

What is the existing statutory protection?

Currently, where a redundancy situation arises when an employee is on a period of family related leave, an employer is required to offer that employee a suitable alternative vacancy where one is available.

What is changing?

The following additional redundancy protections will apply:

During pregnancy:
The redundancy protection will start when an employee tells their employer about the pregnancy. If the employee is entitled to statutory maternity leave, then the protected period of pregnancy ends on the day the statutory maternity leave starts, and the redundancy protection will continue during statutory maternity leave as currently. If the pregnancy ends and the employee is not entitled to statutory maternity leave, the protected period ends two weeks after the end of the pregnancy. In these circumstances, the employer needs to be informed of the pregnancy before the protected period of pregnancy would have ended.

Maternity leave:
The “additional protected period” will end 18 months after the expected week of childbirth 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.

In a typical example of an employee taking 12 months’ maternity leave, this means that the protection will start when the employee tells the employer about their pregnancy and end six months after the end of their maternity leave.

Adoption leave:
The “additional protected period” ends 18 months after the child’s placement for adoption.

Shared parental leave:
For those taking six or more consecutive weeks of shared parental leave but who have not taken maternity or adoption leave, the “additional protected period” ends 18 months after the date of the child’s birth or placement for adoption.

When does the new protection start?

Where the protected period covers pregnancy, the new rules will apply where the employee notifies their employer of their pregnancy on or after 6 April 2024.

Where the protected period relates to a period after family related leave, the new rules will apply to maternity and adoption leave ending on or after 6 April 2024 and to a period of at least six consecutive weeks’ shared parental leave that started on or after 6 April 2024.

What should employers do now?

These changes are likely to add a significant level of complexity to any current or planned redundancy exercises. If you have started or are planning any redundancies, it is important that employers have a clear understanding of who might be affected by the protection and take advice at an early stage in order to minimise the risk of potential unfair dismissal and discrimination claims.  In particular, the fact that male employees who have taken shared parental leave will now be entitled to an 18-month protected period will mean that extra thought and care needs to be taken when conducting redundancy exercises, to ensure that statutory rights are protected.

Please get in touch with your usual Employment contact for further advice.