Protection against redundancy during pregnancy, maternity leave and on return

Research exercises conducted by the Equality and Human Rights Commission and others have demonstrated that a disproportionately high number of women are made redundant either when pregnant, during maternity leave or shortly after return from maternity leave, when compared to the number of redundancies made in the female workforce or in the workforce as a whole.

This is a surprising statistic given that:

1. unfavourable treatment of a female employee during pregnancy or maternity leave is well known to be unlawful discrimination under the Equality Act 2010;
2. selection for redundancy for reasons connected with pregnancy, childbirth, statutory maternity leave, statutory adoption leave, shared parental leave and other family-orientated legal rights will render the dismissal automatically unfair with no cap on the compensatory award available and no qualifying period of service being required in order to bring a claim; and
3. since 1999, in the event of a redundancy situation arising, employees on maternity leave have had a right to be offered suitable alternative employment, if such a role exists, with priority over any other employee who may be at risk.

The new government regulations

To combat the targeting of pregnant employees and employees taking maternity leave for redundancy, the government has introduced:

• The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 which was passed on 24 May 2023, and
• The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 which were passed on 28 February 2024.

Where a redundancy situation arises, protected employees will have a greater period of priority in respect of redeployment opportunities in comparison to other employees who are at risk.

Specifically, the new law states that if an employee informs the employer that they are pregnant on or after 6 April 2024, or their period of statutory maternity leave ends on or after 6 April 2024 and if, by reason of redundancy, it becomes not practicable for an employer to continue to employ an employee under their existing contract of employment during:

1. the “protected period of pregnancy” which is the period from:
   1. 1. a. the date the employer is informed of the pregnancy (which may be after the pregnancy has ended), to
      2. b. the start of statutory maternity leave or otherwise, 2 weeks after the end of pregnancy; or
2. the statutory maternity leave period; or
3. the “additional protected period” which is the period of 18 months from day 1 of the expected week of childbirth, or the actual date of childbirth if such is notified to the employer in writing by the employee within the maternity leave period,

then if a suitable available vacancy exists, either with the employer or an associated employer, the employee is entitled to be offered that vacancy, before the end of their existing contract of employment. Any new contract will take effect immediately on the end of the original contract.

The new contract of employment must be such that:

1. the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for them to do in the circumstances, and
2. its provisions as to the capacity and place in which the employee is to be employed and as to the other terms and conditions of employment must not be substantially less favourable than those enjoyed under the original contract.

An amended form of this protection is also available for employees taking adoption leave or shared parental leave.

It should be noted that this is not a ban on making pregnant employees or new mothers redundant; the protection relates to the appointment to alternative roles and seeks to combat unfair selection.

What should employers do?

In order to comply with these new redundancy protection requirements, as a matter of best practice and compliance with prevailing employment law, employers need to:

1. Ensure that they have a clear and comprehensive understanding of the duties of the role that an employee holds when she notifies the employer that she is pregnant and before she commences maternity leave.
2. Ensure that she is not treated unfavourably as a result either during her pregnancy or because she has taken maternity leave.
3. Ensure provision is made to comply with the employee’s right to return to her role after maternity leave, e.g. by arranging temporary maternity cover.
4. If a redundancy situation arises which affects an employee who is pregnant or on maternity leave, or in the case of an employee who has returned from maternity leave, within the 18 months following the birth of their child or day 1 of the expected week of confinement, ensure that the restructuring exercise is planned fairly and transparently, bearing in mind that if the employee is at risk, she has a right of priority over other employees at risk in relation to the offer of suitable alternative employment.

If you need advice on the issues raised in this article, please contact Helen Wyatt.