Enhanced protection from redundancy for pregnant employees

Currently, where an employee is on maternity leave and there is a redundancy situation, an employer is under an obligation to offer that employee suitable alternative employment where such a vacancy exists. This includes any vacancies with an associated employer.

This obligation results in the employee on maternity leave having priority over other employees who are also at risk of redundancy. If an employer does not comply with this obligation and the employee is dismissed by reason of redundancy, the employee will have a claim for automatic unfair dismissal under section 99 of the Employment Rights Act 1996.

For a number of years, many have asserted that this protection from redundancy should be extended for a period of time following an employee’s return from maternity leave. In early 2019 the Government consulted on whether the protection should be extended for up to six months after the employee’s return to work and this proposal (in the form of a private members bill) received the backing of the Government in October 2022. The Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23 received Royal Assent on 24 May 2023 and will come into force on 24 July 2023, however we are still awaiting new regulations which are needed to bring the proposals into effect.

The new legislation provides powers to the Secretary of State through regulations to extend the period of redundancy protection. It is expected that the new regulations, when implemented, will provide protection for pregnant employees from the time they disclose their pregnancy to their employer until 18 months after the birth of the child. This will provide comfort to those returning from a significant period of time away from work and will mean they no longer face unnecessary worry in respect of whether their role is safe from redundancy upon their return.

Employers should ensure they are aware of their obligations under the new legislation and ensure that all proper processes and procedures are followed in any redundancy situation faced by the business. If you are an employer or an employee requiring advice in respect of redundancy, please contact our dedicated Employment Team who would be happy to provide assistance and guidance at what is likely to be a difficult and stressful time.