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Protection against redundancy for those pregnant or returning from family leave

24th April 2024

From April 6th, employees who are either pregnant or returning from maternity, adoption, or shared parental leave will have the right to be offered a suitable alternative role, where one is available, in a redundancy situation during their leave period.

Under the current law, employees on maternity leave, shared parental leave or adoption leave already have protection in a redundancy situation. However, The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends the protection to pregnant employees and those who have recently returned from maternity/adoption leave and shared parental leave.

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Different types of protection

Pregnant employee who takes maternity leave:

• The length of protection starts from the moment the employee notifies the employer of the pregnancy.
• Protection ends 18 months from the child’s birth date. However, if employer is not notified of the date of birth, this would be 18 months from the expected week of birth.

Employee taking adoption leave:

• The length of protection starts from the beginning of adoption leave.
• Protection ends 18 months from date of placement.

Employee who has suffered a miscarriage:

• The length of protection starts from the moment the employee notifies the employer of the pregnancy.
• Protection ends two weeks after the end of the pregnancy.
• Pregnancies ending after the 24 weeks are classed as stillbirths and the employee would then be entitled to statutory maternity leave.

Employee taking shared parental leave:

• The length of protection starts from the beginning of shared parental leave.
• If the employee takes less than six weeks of shared parental leave, then the protection will be up until the end of shared leave.
• If more than six continuous weeks of shared parental leave is taken, protection will end 18 months from the child’s birth date.

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Key details for employers

An employee who is either pregnant, on maternity leave, adoption, or shared parental leave, must be treated as a priority and offered an alternative suitable position before any other employee if selected for redundancy. Sometimes you might have alternative jobs that you can offer to redundant employees.

If an employer does not follow this protocol, the dismissal of the employee will be automatically considered unfair. If you do offer a suitable alternative and the employee unreasonably turns it down, they would then lose their right to a redundancy payment.

The alternative job must be suitable and appropriate for the employee in question. A suitable and appropriate job defined by law must be no worse than the previous job with regard to location, terms, and conditions.

Therefore, if the new position requires a different location or requires the employee to require childcare at home, it may not be suitable and therefore would not lose the right to a redundancy payment if it is rejected. In the rare cases that there is only one vacancy and more than one person on maternity leave, you will have to consider for whom it is most suitable.

If there is no suitable alternative position, an employee can be made redundant during their statutory maternity leave, provided the reason for redundancy is unconnected with the pregnancy or maternity leave. The employer must also have followed a fair redundancy process.

We are highly experienced in this area of law and can support you during these changes. For further information, please contact Sarah Everton, Head of Employment Law, on 01782 577000 or email: sarah.everton@myerssolicitors.co.uk