Home / Enhanced Redundancy Protection for Pregnancy and New Parents
25th October 2024
Lauren Ogden, Associate
This year has brought some significant changes to the rights of employees returning from family leave. We have seen the introduction of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 in April this year introducing additional protection from redundancy for those returning from family leave. The highly anticipated Employment Rights Bill also announced Labour’s intentions to strengthen these rights further. So, what do employers need to know?
The Redundancy (Pregnancy and Family Leave) Act 2023 came into force on 6 April this year. Before this act was introduced, employees on maternity leave, shared parental leave or adoption leave had the right to be offered a suitable alternative vacancy in a redundancy situation. The new legislation extended this priority status to include employees who have recently returned from these types of leave as set out below:
This means that employers who are carrying out redundancies will now need to consider if they have any employees that have recently returned from family leave who are entitled to be offered a suitable alternative vacancy.
Accurate records should be kept of when employees have notified the employer that they are pregnant or have had a miscarriage so the correct dates can be calculated for when the employee’s protection starts and ends. This will involve ensuring that managers are properly trained on the rules so that they know to record this information properly.
The legislation does not give any authority of how to deal with a situation where there are more employees with this additional protection than there are suitable alternative vacancies. This situation will need to be handled carefully and will often depend on the specific facts. There may also be a conflict of additional rights. For example, an employer may have to decide between offering the suitable alternative vacancy to a woman on maternity leave against a man who has returned from 7 weeks of shared parental leave.
It is also important that employers correctly identify suitable alternative vacancies at the outset of any restructure.
The recently released Employment Rights Bill gives the government the power to increase protections against dismissal for pregnant employees and those returning from family leave.
The bill does not include details of what this will include at this stage and it will instead be dealt with in further regulations so we will have to wait and see what this entails. Given the approach being taken to other changes in the bill, we would expect the government to carry out some sort of consultation on this point.
If an employer fails to offer an employee covered by these protections a suitable alternative vacancy, the employee will have a claim for automatic unfair dismissal. This means that they do not need two years’ service to bring the claim (note that this minimum service requirement is due to be removed which you can read more about here. The compensatory award would also be uncapped.
In some cases, the employee would also have a claim for discrimination which would give rise to an award for injury to feelings and again this would be uncapped.
In the recent case of Twitchen v Genu Prima Ltd t/a First Grade Projects 2024, the employee was successful in her claims for automatic unfair dismissal and discrimination due to pregnancy. She was dismissed by reason of redundancy shortly after informing her employer she was pregnant with her second child as she was about to return from maternity leave with her first child. The Claimant was awarded £28,000 in compensation. £15,000 of this attributed to injury to feelings.
Whilst this case was not specifically about the employer’s failure to offer suitable alternative vacancies, it gives you an idea of the amount of compensation which can be awarded in these types of claims.
For more information, please get in touch with a member of our employment team.