All employees returning from maternity leave, adoption leave and shared parental leave have the right to return to work, however there are occasions when a restructure or redundancy process may arise whilst an employee is on family leave. 

Previously employees on maternity leave, adoption leave or shared parental leave had special protection in a redundancy situation to be offered any available suitable alternative vacancy before being made redundant, giving priority to these employees over other redundant employees. This period of special protection would end on the employee’s return to work. 

From 6 April 2024 the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (legislation.gov.uk) will extend the period of special protection from redundancy (i.e. the right to be offered suitable alternative vacancies in a redundancy situation) for employees on maternity leave, adoption leave or shared parental leave. 

Under the new legislation the period of special protection from redundancy will be extended such that it will apply both during pregnancy and for a period of up to 18 months following the birth or placement for adoption of a child. 

The extension to include protection during pregnancy will apply to employees who have notified their employer of their pregnancy on or after 6 April 2024. There is no statutory definition of the form this notice should take but employers would be advised to ensure there is a written record.  

It should be noted that where an employee notifies their employer of their pregnancy shortly before 6 April, the employee may provide a second notification to their employer, after this date, so as to benefit from the extension to the protections under the new legislation.  

The extension of the protected period will apply to any maternity and adoption leave ending on or after 6 April 2024. For maternity leave, the period of protection will be 18 months from the child’s date of birth if this has been notified to the employer, or 18 months from the expected week of birth if the employer has not been notified of the date of birth and for adoption leave the period of protection will commence at the beginning of adoption leave and will be 18 months from placement for adoption or for overseas adoption, 18 months from the date of entry into Great Britain. 

For those taking shared parental leave who have not taken maternity or adoption leave, the extension of protection will cover 18 months from birth provided that a six-week threshold of continuous shared parental leave is taken.  

For the avoidance of doubt, the new legislation is not a ban on making employees redundant during the period of special protection from redundancy, but does impose an obligation to offer a suitable alternative vacancy to those employees afforded special protection. Where an employer fails to do so the employee has a claim for automatic unfair dismissal (with no requirement for 2 years qualifying service). In addition the employee may also have a discrimination claim, for which the compensation awards are uncapped,  so employers must be mindful of the extension to the period of special protection or risk a potentially costly claim. 

Notwithstanding the risks of an employment claim it will be key for employers to be aware of the extension of special protection if they are considering restructure or implementing redundancies given that employees who fall under these special protections could be protected for up to 2 years. For example- if an employee advises their employer they are pregnant early in their pregnancy they will be covered during their pregnancy and an addition 18 months from the child’s birth date or expected week of birth (if the employee takes a full year of maternity leave). 

Employers are advised that they should now start looking at; 

• keeping up to date and accurate records in order to calculate the extended protection periods; 
• reviewing their family leave and redundancy policies; and  
• ensuring all managers undertaking redundancy processes are trained and made aware of the special protections.  

As a final point, there has been commentary regarding the increased likelihood of having more than one employee who falls under the special protections during a redundancy process. The legislation does not provide any guidance on this point so employers would be advised to identify all possible vacancies across their organisations when considering a restructure in the event there is more than one employee who has a priority to any suitable alternative vacancies.