New legislation is currently passing through parliament which will significantly enhance the protection expectant mothers and new parents have against redundancy.
Current Protection
A woman who is on maternity leave is currently protected against redundancy if there is a ‘suitable alternative vacancy’ within the business. Similar protection also applies to those on adoption leave and shared parental leave. This protection ends when the new parent returns to work. In practice, this means that an employee on maternity, adoption or shared parental leave will automatically be allocated a suitable role (if one exists) over other employees. This right is triggered at the point the employee is put at risk of redundancy.
This protection is an absolute right, which means that the employee on leave has the right to be offered a suitable vacancy even if they are not the best candidate for the job. They should not be required to engage in any form of the selection process.
For an employee who is pregnant, whilst they are protected against pregnancy discrimination, there is no specific enhanced protection against redundancy.
The current provisions leave expectant mothers and those returning from maternity, adoption, or shared parental leave vulnerable to dismissal due to redundancy.
Proposed Enhanced Protection
The new legislation, which is currently going through the House of Lords, will extend the existing protection from the point that an employee informs their employer that they are pregnant to up to 18 months from the birth of the child. This means that an employee who takes maternity, adoption, or shared parental leave for 1 year will still receive 6 months of enhanced protection on their return.
The protection will work in the same way as before, ensuring that an expectant mother or employee returning from maternity, adoption or shared parental leave will be entitled to be offered a ‘suitable alternative vacancy’ at the point that they are put at risk of redundancy.
Does this mean that a pregnant employee or employee on or returning from maternity, adoption or shared parental leave cannot be made redundant?
The existing and proposed legislation does not mean that an employee who benefits from the enhanced protection cannot be made redundant. In circumstances where there are no suitable alternative vacancies, provided that the redundancy is genuine and a fair process is followed, an employee with this protection can still be made redundant.
Whilst we do not have a date yet for when the new legislation will come into force, we always advise employers to plan any redundancies carefully, not only to highlight any risks but to ensure that the process is fairly carried out to offer maximum protection against an unfair dismissal claim.
Our expert advisors can offer the following services when it comes to redundancy planning and execution:
- Redundancy or reorganisation planning advice and support
- Template letters and guidance at meetings
- On site support for redundancy consultations
To speak with one of our legal advisors please contact us today on 0333 888 1360 or email [email protected]
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