UK: draft regulations confirm detail and timing of extension of family leave redundancy protection

Following the Protection from Redundancy (Pregnancy and Family Leave) Act last summer, draft regulations have now been published setting out the changes to redundancy protections due to apply from 6 April 2024.

Employees on maternity leave, adoption leave or shared parental leave already have the right to be offered a suitable alternative vacancy, if available, before being made redundant during those leave periods – in effect, they have priority over other redundant employees in relation to vacancies.  Subject to Parliamentary approval, these existing redundancy protections will be extended as follows:

• pregnant employees will be protected from the point of notifying their employer that they are pregnant (where this notification is on or after 6 April 2024), including where the pregnancy has already ended prior to the notification;
• where the employee is not entitled to statutory maternity leave, for example where the employee suffers a miscarriage before 24 weeks of pregnancy, the protection lasts from the notification to two weeks after the end of the pregnancy;
• for those taking statutory maternity leave which ends on or after 6 April 2024, an additional protected period runs from the end of that leave until the date 18 months after the date of childbirth (if this has been notified to the employer before the end of leave or as soon as reasonably practicable) or the first day of the expected week of childbirth;
• for those taking statutory adoption leave ending on or after 6 April 2024, the additional protected period ends 18 months after the child's placement (or the child's entry into Great Britain if adopting from overseas);
• for those who have not taken maternity or adoption leave but have taken 6 or more consecutive weeks of shared parental leave starting on or after 6 April 2024, the additional protected period runs until 18 months after the date of the child's birth or placement.  (Those who take less than 6 continuous weeks of shared parental leave will only be protected during the leave itself.)

The 18 month protected periods run from the date of birth or placement, regardless of how much leave the individual has actually taken.

Employers will need to review their redundancy processes to ensure managers identify all priority employees and look for all potentially suitable vacancies across the organisation and group companies (bearing in mind the ability for roles to be carried out remotely where appropriate); failure to do so could risk claims for automatically unfair dismissal and possible discrimination. With the potential increase in numbers of protected employees, employers may also need to prepare for having to select from the protected employees if there are insufficient available vacancies.  The impact of more priority status employees on other ‘at risk’ employees may also require sensitive handling.