Priority for suitable alternative vacancies in a redundancy situation extended to pregnant employees and family leave returners

New rules were introduced on 6 April 2024 extending priority status for suitable alternative employment in a redundancy situation to employees who have notified their employer that they are pregnant or who have recently returned from maternity, adoption or shared parental leave.

What does a fair redundancy process involve?

An otherwise fair redundancy dismissal can be unfair if there has been a failure to follow a fair procedure. An employer will not normally have acted fairly unless they have:

• carried out meaningful consultation;
• adopted a fair basis on which to select for redundancy (identifying an appropriate pool and selecting against objective criteria); and
• made reasonable efforts to search for and, if available, offer alternative employment.

Who has priority for suitable alternative vacancies?

Certain employees have priority for suitable alternative vacancies in a redundancy situation. An employee with priority must be offered a suitable alternative vacancy even if this means that they are treated more favourably than colleagues who are better qualified. The alternative employment must be offered before the end of the employee's existing contract and start immediately on the end of the old contract.

Prior to 6 April 2024 this priority status only applied to those on maternity, adoption or shared parental leave. This priority status has been extended:

What does having priority status mean in practice?

This protection gives employees priority for redeployment opportunities in a redundancy situation but does not mean that they need to be excluded from the selection process and ring-fenced for retention.

Employees don’t have priority for any alternative work, only ‘suitable alternative vacancies’. A vacancy will be suitable if the work is suitable and appropriate for the employee to do in the circumstances; and the capacity and place in which they are to be employed, and the other terms and conditions, are not substantially less favourable than the old job.

If alternative work is available but not ‘suitable’, the employee will not have priority, but should be considered for it in the same way as other employees.

Implications for employers

Managers should be made aware that redundancy protection has been extended to a wider group of employees. Ideally a system should be put in place to record the protection periods applying to these employees.

An employee will be able to claim automatically unfair dismissal if you dismiss them for redundancy without complying with these rules on priority. Employees don’t need two years’ service to claim automatically unfair dismissal in these circumstances. In some cases, there may also be a discrimination claim.

The new rules will inevitably lead to an increase in the number of employees with priority status in a redundancy situation. If there is only one alternative job and more than one employee with priority for whom it would be suitable, each of those employees will have an equal entitlement to be offered the vacancy and a fair selection process should be used. 

Please get in touch with the Brodies Employment and Immigration team if you would like guidance on how to deal with this in practice. Workbox by Brodies users can find more detail at Redundancy: Alternative Employment.