Proposal to extend redundancy protection for pregnant employees and new parents

The Protection from Redundancy (Pregnancy and Family Leave) Bill ("the Bill") proposes to extend the protection against redundancy for employees who are pregnant or on maternity leave, adoption leave or shared parental leave. So, what would this mean in practice?

What protection currently exists?

Unlike in some other jurisdictions, there is no blanket ban on dismissing employees who are pregnant or on maternity leave, adoption leave, or shared parental leave. These employees can be selected for redundancy so long as:

• There is a genuine redundancy situation;
• You follow a fair procedure and act fairly and reasonably;
• You inform and consult with the employee; and
• Your selection criteria are objective, non-discriminatory and applied fairly.

If an employee has been selected for redundancy while on maternity, adoption or shared parental leave you must also offer them a 'suitable alternative vacancy' where one is available in your organisation or with an associated employer. This priority for suitable alternative vacancies does not currently extend to pregnant employees.

A vacancy will be suitable if (i) the work is suitable and appropriate for the employee to do in the circumstances; and (ii) the terms and conditions are not substantially less favourable than the previous role. You don't need to create a vacancy, where one doesn't exist. If there are a number of other redundant employees competing for the alternative role, we recommend taking advice: it may be that the employee will need to be automatically offered the job in preference to other employees without having to undergo an interview or assessment.

A failure to give an employee who is on maternity, adoption or shared parental leave priority for a suitable alternative vacancy may lead to an automatically unfair dismissal and in some cases also pregnancy and maternity discrimination.

This protection currently ends when the employee returns to work. Concerns have been raised that an employer can simply wait until an employee returns from leave to implement redundancies and circumvent the protection.

How would the Bill extend redundancy protection?

Following the Taylor Review of Modern Working Practices in 2017 and a subsequent government consultation in 2019, the government committed to reviewing the protection from redundancy for pregnant employees and new parents. Despite initial plans to include the extended protection in a new Employment Bill, the reform has come by way of support for a Private Member's Bill.

The Bill will enable the Secretary of State to make regulations providing increased protection. While the specific details will be outlined in the regulations themselves, the government stated in its consultation response that it will:

• Extend the redundancy protection period for expectant employees so that it applies from the point at which an employee informs their employer that they are pregnant, whether orally or in writing, until six months after they return to work after maternity leave.
• Extend redundancy protection for those taking adoption leave and shared parental leave for a period of six months after their return to work.

Kevin Hollinrake MP, Parliamentary Under-Secretary of State for the Department for Business, Energy and Industrial Strategy, said that the government would consider whether to impose a minimum threshold whereby only employees who have taken at least six weeks of qualifying leave would benefit from the extended protection. Concerns have been expressed, however, that this could leave employees unprotected should they have to curtail their leave for any reason.

Next steps

The Bill will now make its way through the House of Lords. It is not yet clear when the increased protection will come into force.

Please get in touch should you wish to discuss anything raised in this blog. Workbox subscribers can access more information and policies on pregnancy, family leave, redundancy and discrimination.