Enhanced Safeguards for Pregnant Employees and Returners from April 2024

As of 6 April 2024, the statutory right for an employee to be offered suitable alternative employment in a redundancy situation has been extended to:

• Employees who are pregnant and
• New parents who have recently returned from a period of maternity or adoption leave or from a period of at least 6 weeks of shared parental leave (“relevant leave”)

The new regulations give such employees priority over other staff for any suitable alternative vacancies in the organisation.

What changes have been made?

Under current rules, employers have an obligation to offer an employee on maternity leave, shared parental leave or adoption leave a suitable job vacancy (if there is one), during a redundancy exercise.

The new regulations from 6 April 2024 extend redundancy rights so that they apply from the point an employee informs their employer that they are pregnant until 18 months after the expected week of childbirth, or the child’s birth date or the date of adoption, for employees returning to work from a period of relevant leave.

In the context of a pregnancy, this protection applies where an employee notifies their employer of their pregnancy on or after 6 April 2024.

In the context of returning from relevant leave, the new rules apply where the period of leave comes to an end on or after 6 April 2024. This means that employees who notified the employer of their pregnancy prior to 6 April 2024, will not be protected by the new rules during their pregnancy but will have the benefit of the redundancy protections from the start of their leave and for 18 months from the expected week of childbirth.

There is no prescribed means for the employee to notify the employer of a pregnancy and this notification does not require to be in writing. As an employer, you should consider having a policy detailing specific pregnancy notification requirements and ensuring that you have a process in place to centrally record any notice which has been verbally given.

What is suitable alternative employment?

Suitable alternative employment refers to a job that is reasonably comparable to the employee’s previous role in terms of skills, pay, location, and other relevant factors. In general, when an employer makes an employee redundant, they have a legal obligation to consider whether there are any suitable alternative positions within the company that the redundant employee could fill.

However, qualifying employees (i.e. pregnant employees or those on, or returning from relevant leave) will have priority over other staff who may also be redundant, in relation to any vacancies which would be suitable alternative roles.

What should employers do if more than one employee has priority for a vacancy?

There is no guidance on this point so far, best practice would be for the employer to use fair and objective selection criteria to select from a separate pool of protected employees.

It will be important for employers to keep a clear record of justification if they deem a role not to be suitable for a candidate.

What does this legislation mean for employers?

Employers should note that the new redundancy protections will apply to those returning from relevant leave on or after 6 April 2024 or where the employer is notified of pregnancy after that date.

This legislation does not prevent employers making pregnant employees or those on/returning from parental leave redundant, assuming a fair and non-discriminatory process. The legislation does, however, afford these employees priority over other employees for suitable alternative roles, once selected for redundancy.

If an employer fails to offer a suitable alternative role to an employee with priority protection, the employee may have a claim for automatically unfair dismissal, or for sex discrimination – for which compensation is uncapped.

Conclusion

These are technical but important changes which could catch out even the most reasonable employer. Prudent employers should review their redundancy policies and procedures to ensure that they acknowledge the extended period of protection.

Employers should ensure that all managers are aware of the new rules, effective from the point that an employee informs them of a pregnancy. Employers need to ensure they have a system to properly record which employees are in a “protected period”, as this is now more complex than simply “who is on parental leave?”

If you would like further information on this topic do not hesitate to contact a member of BTO’s Employment Team.

This update contains general information only and does not constitute legal or other professional advice.