Employment Law Update
By Kate Palka
The Protection from Redundancy (Pregnancy and Family Leave) Act came into effect on 6 April 2024.
Previously, an employer had to offer suitable alternative employment to an employee on maternity leave, if one exists, in preference to other employees.
The new Act extends the period for expectant (from when an employer is notified) and new mothers for up to six months after they return.
This right applies to those on adoption leave and shared parental leave.
Summary of different statuses
Employee on Maternity Leave | Starts: When the employer has been notified of pregnancy Ends: 18 months from the child’s date of birth if notified to employer before the end of maternity leave (or 18 months from the Expected Week of Childbirth if not notified). |
Employee who has suffered a miscarriage | Starts: When the employer has been notified of pregnancy Ends: Two weeks after the end of the pregnancy, for pregnancies ending before 24 weeks. Note: Pregnancies ending after 24 weeks are classed as stillbirths and the employee would be entitled to statutory maternity leave. |
Employee taking adoption leave | Start: Beginning of adoption leave End: 18 months from date of placement |
Employee taking shared parental leave | Note: If the employee has also taken maternity or adoption leave, the above periods apply instead. Starts: Beginning of SPL Ends: If less than six weeks of SPL is taken, at the end of SPL. If more than six continuous weeks of SPL is taken, 18 months from the child’s date of birth |
Restructuring
Any employers considering or planning restructuring in 2024 will need to think through the implications. Note, the rules do not address the position for notification of pregnancy before 6 April 2024.
Increase in priority numbers
New and expectant mothers will be able to double their period of redundancy protection to a period of about two years. Fathers taking sufficient shared parental leave will also be protected for 18 months.
There is no legal authority on how to proceed where there are more employees with priority status than there are suitable alternative vacancies. The regulations only state the employee’s entitlement to be offered the suitable alternative vacancy where there is one available.
Calculating, recording and triggering of protection periods
The regulations are not clear as to the form of notification required, but it’s likely that oral notification to a manager or HR will count.
Employers will therefore need to ensure they have accurate and up to date records regarding pregnancy notification and sadly, any miscarriages, to calculate protection periods accurately.
Key implications for employers
- Uptake in SPL
- Fairness, awareness and manager training
New and expectant parents should be protected from discrimination and not have to compete for redeployment opportunities at a vulnerable time. But this may feel unfair to managers and employees on the ground. - Identifying suitable vacancies
With an increase in the number of employees who could be eligible for priority status, employers will need to adopt systems for identifying potentially suitable vacancies across their operations, including any other companies in their group. - Penalties for getting it wrong
Employers that fail to offer a suitable alternative vacancy could face a claim from an employee for an automatic unfair dismissal. This does not require two years’ qualifying service and could mean an uncapped compensatory award.
Get in touch
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And, if you would like our help with implementing best practice in your business, please get in touch on 020 3056 8538 or info@thelegaldirector.co.uk.
