In a redundancy situation, pregnant employees, and employees on maternity leave, adoption leave or longer periods of shared parental leave (but not paternity leave) must be prioritised over other employees when it comes to being offered suitable alternative employment. In a rare example of legal positive discrimination, these employees should be given first refusal of any such opportunities, over other employees. This is known as a period of protection.

On 6 April 2024, this period of protection was extended. Pregnant employees are now protected from the time they inform their employer of their pregnancy until 18 months after the date of childbirth. In the case of a miscarriage within the first 24 weeks of pregnancy, the period of protection will last for two weeks from the end of the pregnancy. If a child is stillborn after 24 weeks of pregnancy, the period of protection will last for 18 months from the date of the birth.

For adoptions, the period of protection begins when the adoption leave starts, and lasts for 18 months after the date of adoption (or the date the child enters Great Britain, in the case of an overseas adoption). Previously, the period of protection only lasted while the employee was on adoption leave.

In the case of shared parental leave, the extended 18-month period of protection only applies when the employee has taken at least six weeks of continuous shared parental leave. In these situations, the period of protection starts when the shared parental leave starts, and ends 18 months later. For shorter periods of shared parental leave, only the period of shared parental leave itself is covered. For periods of discontinuous shared parental leave, the period of protection ends at the end of each period of shared parental leave.

The main change, from a practical perspective, is that the period of protection now includes some time when the employee is back at work.

It is important to note that the alternative employment must be suitable for the employee, ie a job which they are capable of doing straight away, or with a reasonable amount of training. However, if a protected employee is not given first refusal of suitable alternative employment, they may have a case for unfair dismissal. If no suitable alternative employment is available, the employee can be made redundant, as long as the usual fair redundancy procedure is followed.

If there are more employees in a period of protection than there are suitable alternative vacancies, you should use a fair way of deciding which of the protected employees is most suitable, and explain in writing how you reached your decision.

If you have any questions, please contact us for advice by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.