Redundancies and post-maternity leave: extended protection

It is looking likely that new rules will come into force which strengthen the protection for employees against redundancy from the moment they disclose their pregnancy until a period after their maternity leave has ended and they have returned to work.

The Protection from Redundancy (Pregnancy and Family Leave) Bill (the Bill) was introduced to Parliament in October 2022 in response to a growing view that current legislation did not go far enough to protect employees who had taken a period of maternity leave. The Bill has now passed all four stages in the House of Commons and had it’s first reading in the House of Lords making it likely to become law.

The current position

Currently, the Employment Rights Act 1996 allows the Secretary of State to regulate on matters concerning redundancies ‘during’ periods of maternity, shared parental and adoption leave. Regulation 10 of the Maternity and Paternity Leave Regulations 1999 provides that before making a woman on maternity leave redundant, employers are under an obligation to offer any suitable alternative employment (if available) with the employer or an associated employer. This protection is limited to the duration of the maternity leave.

What will the new Bill do?

If enacted, the Bill will amend the Employment Rights Act 1996 giving the Secretary of State the power to regulate and extend Regulation 10 to provide a longer period of protection against redundancy to ‘during or after’ a period of pregnancy. In 2019 the Government committed to extending the protection to apply for 6 months after an employee’s maternity leave has ended but the period of protection  will be confirmed in any legislation that follows. Additionally, the Secretary of State will be able to make regulations and expand equivalent protections for those on shared parental leave or on adoption leave to extend after their periods of leave have concluded.

Comment

Employers should note that if the Bill is enacted, their obligation to consider redeployment in redundancy situations for those on maternity leave will extend beyond an employee’s return. It should be highlighted that the Bill is yet to become law as it still must pass through the House of Lords. Nevertheless, employers should be aware of their obligations towards parents on maternity, adoption or shared leave and pregnant employees. Additionally, employers should be reminded that failure to provide redeployment (if available) in redundancy situations affecting individuals on these types of leave may result in the employee’s dismissal being unfair.