Extension of Redundancy Protection:
From 6th April 2024, in England, Wales and Scotland, there are new laws that provide a significant extension to the current rights for those employees who are pregnant, or on maternity leave/shared parental leave/adoption leave to be offered suitable alternative vacancies in a redundancy situation – where such a job exists – in priority to anyone else provisionally selected for redundancy.
The new laws about Extension of Redundancy Protection.
During Pregnancy – if the Employer has been informed of the pregnancy, on or after 6th April 2024, then a pregnant employee must be offered first refusal of a ‘suitable alternative employment’ in a redundancy situation.
This enhanced protection starts from the date the employee tells their employer about their pregnancy (on or after 6th April 2024). The ‘protected’ period of pregnancy ends on the day the SMP starts (or if not entitled to SMP, the protected periods ends 2 weeks after the end of the pregnancy); however, they will then be covered by protection during Maternity Leave (see below).
During Maternity Leave – an employee must be offered first refusal of suitable alternative employment in a redundancy situation, for 18 months from the first day of the Expected Week of Childbirth (EWC), or 18 months from the exact birth date. The ‘protected’ period applies to any maternity leave ending on or after 6th April 2024.
So, for example, the new protection means that if an employee takes 12 months maternity leave, they’ll receive an extra 6 months of ‘protection’ after they return to work.
The new rules also apply to employees who suffer a miscarriage before the end of 24 weeks from the start of the pregnancy – they will receive protection for a period of 2 weeks after the pregnancy ends. [After 24 weeks of pregnancy, a miscarriage/loss if classed as a still-birth and the employee is entitled to full SMP and will be entitled to 18 months redundancy protection (after the child’s date of birth/expected week of childbirth)].
During Adoption Leave – an employee must be offered first refusal of suitable alternative employment in a redundancy situation, for 18 months from the placement of the child or start of adoption leave.
During Shared Parental Leave – including fathers /partners who take SPL – an employee must be offered first refusal of suitable alternative employment in a redundancy situation, for 18 months from birth or placement for adoption, provided the parent has taken a period of at least 6 consecutive weeks of Shared Parental Leave and has not taken maternity or adoption leave.
Applies for SPL starting on or after 6th April 2024.
If the employee has taken less than 6 consecutive weeks of SPL the protection ends at the end of SPL.
If the employee has taken adoption/maternity leave before SPL, they are entitled to the protection period from the original maternity/adoption leave, and do not have an extension to the protection from the SPL.
Generally – if an employee takes a shorter ‘family’ leave period than they are entitled to, they are still protected for the same amount of time as described above.
Failure to offer an employee with this enhanced protected any ‘suitable alternative employment’ (where vacancies exist), will mean the employee has a claim for automatic unfair dismissal and this could potentially lead to a discrimination claim.
Guidance will be published by the Department for Business and Trade by April 2024. However, at present there is no guidance about what Employers should do if there are more employees with priority status (protection), than there are suitable alternative vacancies!