Our HR expert explains the implications of the extended ‘protected period’ for pregnant employees and returnees from family-related leave when considering redundancy:
Question:
I have a client whose business is in some financial distress. Unfortunately, it looks as though they may have to make some redundancies in the coming months. The client has read somewhere that after 6 April 2024, they won’t be able to include pregnant employees or those who have returned from family related leave in redundancy consultation. Is this the case?
Answer:
No, this is not the case. However, the law on redundancy in relation to family-related leave and pregnancy will be changing from April 2024, and this is likely what your client has read about.
It is important that they make themselves aware of these changes if there is a possibility of redundancies in their business. Failing to do so could, after all, have costly consequences.
Until 5 April 2024, a ‘protected period’ is in place that means that during maternity, adoption and shared parental leave special protections apply to employees faced with redundancy.
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If a redundancy selection process results in the employee on one of those leave types being identified as at risk of redundancy, then they are entitled to be offered any alternative employment as a priority over other at risk employees provided:
· it is suitable and appropriate for the employee, and
· the terms on which it is offered to the employee are not substantially less favourable than their old terms and conditions.
If the job is suitable and appropriate for the employee and they are not offered it, the dismissal will be automatically unfair. This therefore puts these employees in a preferential position over other employees who have been selected for redundancy, even if they are better qualified and even if there are good business reasons for the employer to want to select another candidate.
This will be extended further from 6 April 2024. Firstly, employees who tell their employer that they are pregnant will get the same protection as outlined above.
Additionally, the protected period that currently applies during adoption, maternity and shared parental leave will be extended to 18 months after the birth or placement for adoption of the child to whom the leave relates.
Note that at least six consecutive weeks of shared parental leave must be taken for the extension to apply.
This means pregnant employees and those that return from the above leave types on or after 6 April 2024 will have the right to be offered a suitable alternative vacancy, where one exists, above other employees. Failing to give this priority would make the dismissal unfair.
With regards to the remaining employees who have been selected for redundancy, they should also be considered for any suitable alternative employment during consultation once an agreement has been reached with the protected employees.
Practically, from 6 April 2024, your client will need to ensure that those responsible for redundancy consultation know who has returned from adoption, maternity or shared parental leave, and when, so as to know if the protection applies or not.
They will also need to be aware if there are any pregnant employees within the pool for redundancy, so that where there is suitable alternative employment, they know who to give priority to.
Where a manager comes from another site or part of the business, they may not be aware of these facts and failing to account for them could result in an unfair dismissal. As such, it will be important that they’re told.
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