The Protection from Redundancy (Pregnancy and Family Leave) Bill received Royal Assent on 24 May 2023, and clarification from the government about the specific details is expected in April 2024.

In a redundancy situation, employees who are on maternity leave, on shared parental leave or on adoption leave must be prioritised over other employees for any suitable alternative vacancies; this is effectively positive discrimination.

The 2023 Act will extend this protection to:

• pregnant employees who are in a ‘protected period of pregnancy’ (the duration of this period is yet to be confirmed);

• employees who have recently suffered a miscarriage;

• employees who have recently returned from maternity leave, adoption leave or shared parental leave. ‘Recently’ is likely to mean within the last six months.

The main purpose of this is to protect the above categories of employees against discrimination due to having taken a prolonged period of absence from work. Therefore, the protection does not extend to employees taking paternity leave, since this would be for a maximum of two weeks.

Employees who inform their employer of a pregnancy at 12 weeks, carry the pregnancy to term and then take the full amount of maternity leave are likely to benefit from around two years of redundancy protection.

The situation can become complicated when more than one employee in a redundancy selection process has the right to be offered any suitable vacancy, for example when two women in the same department are pregnant or on maternity leave at the same time as each other. This is more likely to happen when the protection is extended by the 2023 Act. It seems probable that, in this situation, other factors such as disciplinary record, skills, and qualifications should be considered in order to decide which employee is offered the suitable alternative vacancy. Specific legal advice should be sought in this situation.

The regulations do not mean that the above categories of employee can never be made redundant, but employers should proceed carefully; if they ignore these regulations, they may find themselves accused of unfair dismissal.

 We will keep you updated on the above.

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