From 24 July 2023, new legislation will come into force which will extend the existing redundancy protection to employees. This is welcome news for those expecting a child or who have recently had a child.
Under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, employees who are pregnant and in “a protected period of pregnancy”, those returning from parental leave or women who have recently experienced a miscarriage will be given first refusal to any suitable alternative employment where an employer is proposing redundancies.
However, the new legislation still requires further regulations, which set out exactly how the entitlement will operate, and this is not expected to be rolled out before April 2024. Consequently, little information on the details of the protection being provided, e.g., the length of protection to be given (anticipated to be up to six months) and how a “protected period” of pregnancy will be calculated, has yet been confirmed.
What is the current law?
The new Act will amend the Employment Rights Act 1996 which only provides redundancy protection to those who are on maternity, shared parental or adoption leave. Employers must legally offer them any redeployment opportunities first, prior to confirming any redundancy. If an employer fails to do this, it could lead to an automatic unfair dismissal claim from an employee.
What are the implications for employers and what should they be doing now?
Whilst there is little that employers need to do now from a legal perspective without the additional regulations explaining how the new legislation will work, it is still worthwhile considering the implications of the new legislation and the issues that could crop up.
Expectant mothers could be provided with a period of protection of about two years on the basis that they:
- Inform their employers that they are pregnant at 12 weeks;
- Take the full year of maternity leave; and
- Are then protected when they return to work – believed to be six months based on the consultation and a previous Government press release.
Additionally, extending redundancy protection to include those returning from shared parental leave will also mean that more employees (partners and men) will have priority redundancy rights which employers will have to consider when conducting a redundancy exercise.
If an employer is proposing a redundancy scenario then they will need to be mindful to check if any affected employees who are pregnant, or have recently returned from parental leave and create systems that identify potential suitable alternative employment to ensure these opportunities are being offered first to those who qualify.
It seems likely that employers who fail to comply with these new laws could face automatic unfair dismissal claims from employees. This should be confirmed in the additional regulations.
When the new legislation is implemented, it is important that employers review and update their internal policies and procedures on redundancy. It may also be worth considering training for HR and managers responsible for redundancy processes so that the new laws are correctly factored into the process and for an employer to be aware of the consequences of non-compliance.
How can Nelsons help
For further information or advice concerning the subjects discussed in this article, please get in touch with a member of our expert Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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