January’s Employment Law Digest – Protection from Redundancy: Pregnancy and Family leave

These regulations bring the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 into operation.

At the moment, if an employee’s role is made redundant whilst they are on maternity, adoption or shared parental leave, such employees should be offered first refusal of any suitable alternative employment which may be available. This protection only applies whilst the employee is on such leave, and falls away once they return to work.

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However, under the draft regulations, this protection will be extended as follows:

• Maternity leave: The protected period starts when the employer has been notified of pregnancy and ends 18 months from the child’s date of birth if notified to employer before the end of maternity leave (or 18 months from the Expected Week of Childbirth if not notified)
• Adoption leave: The protected period starts at the beginning of adoption leave and ends 18 months from the date of placement (or date of entry into Great Britain if an overseas adoption).
• Shared parental leave: The protected period starts at the beginning of the SPL and ends either at the end of the SPL if less than 6 weeks SPL is taken, or 18 months from the child’s date of birth if more than 6 continuous weeks of SPL is taken. Note that if the employee has taken maternity or adoption leave the above periods apply instead.
• Employees who have suffered a miscarriage: The protected period starts when the employer has been notified of the pregnancy and ends 2 weeks after the end of the pregnancy for pregnancies ending before 24 weeks. Note pregnancies ending after 24 weeks are classed as stillbirths and the employee would be entitled to statutory maternity leave.

Whilst it is not a ban on making employees redundant, during the protected period, the above employees have the right to be offered suitable alternative employment in a redundancy situation.

The new rules are expected to apply where an employee notifies their employer of their pregnancy on or after 6 April 2024, where an employee’s adoption or maternity leave ends on or after 6 April 2024, or where an employee’s shared parental leave of 6 consecutive weeks or longer starts on or after 6 April 2024. However the regulations are still in draft form and therefore may be subject to change.

If you have any question with regard to the issues above, or any other employment law issue, please do get in touch with Heather, or another of our Expert Employment Law Solicitors.