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Extended redundancy protection for maternity, adoption or shared parental leave | Consensus HR – Herts, Beds

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Extended redundancy protection for maternity, adoption or shared parental leave | Consensus HR – Herts, Beds

Published in May this year, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 requires secondary legislation to bring its provisions into force and full details can be seen below, together with a number of other planned employment law changes.

The relevant statutory instrument, the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024, has been laid before Parliament in draft form and is expected to come into force on 6 April 2024.

The draft regulations amend the Maternity and Parental Leave, etc Regulations 1999 (SI 1999/3312) (MAPLE), the Paternity and Adoption Leave Regulations 2002 (SI 2002/2788) and the Shared Parental Leave Regulations 2014 (SI 2014/3050).

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Under current rules, before offering redundancy to an employee on maternity leave, shared parental leave or adoption leave, employers have an obligation to offer them a suitable alternative vacancy where one exists. This is set out in Regulation 10 of the MAPLE.

The new legislation will enable this redundancy protection to be extended so that it applies to pregnant women as well as new parents returning to work from a relevant form of leave. This will, the Department for Business, Energy and Industrial Strategy (BEIS) said, help shield new parents and expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives.

The aim is to extend the MAPLE protections through an expanded period covering from when an employee tells their employer they are pregnant until 18 months after the birth.

The 18-month window will ensure that an employee returning from a year of maternity leave can receive six months’ additional redundancy protection. The 18-month window will also apply to adoption leave and shared parental leave.

For those taking shared parental leave who have not taken maternity or adoption leave, there is a six-week threshold of continuous leave that needs to be met for the requirements to apply for a period of time after shared parental leave has ended. Where the six-week threshold is not met, the requirements apply during shared parental leave.

While the details are unlikely to be changed, it is important to note that the above relates to draft regulations which have still to be formally adopted by Parliament.

Extended redundancy protection for maternity, adoption or shared parental leave | Consensus HR – Herts, Beds
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Our HR Comment:  Extended redundancy protection for maternity, adoption or shared parental leave.

Matthew P Chilcott, FCIPD, ACEL, BA (Hons), Owner comments: “We knew this was on its way, when it was published in May this year and it is nice to get some further information from our Chartered Institute & HR inform.  This is another piece of legislation that we now know will be coming into force in April 2024, together with Flexible Working from day one of employment.  Click Here to read our previous blog on Flexible Working, a day one right.

Other planned Employment Law changes

  • Proposed rates of SSP and family friendly leave announced – On 28 November 2023, the Government published its proposals for pay rates for family friendly leave, statutory sick pay, and the lower earnings threshold to be applied from April 2024.
  • Employment Law Newsletter November 2023 (Click here)
    • Consultation for Acas new Code of Practice
    • Bonus clawback clause in contract not a restraint of trade
    • Menopause Manifesto published.
    • Worker Protection (Amendment of Equality Act 2010) Act 2023 now in force.
    • Remote working claims increase.
  • New employment laws: update – 2023 /24 (click here)
    • The new Laws are:
    • Employment (Allocation of Tips) Act 2023
    • Carer’s Leave Act 2023
    • Protection from Redundancy (Pregnancy and Family Leave) Act 2023
    • Strikes (Minimum Service Levels) Act 2023
    • Neonatal Care (Leave and Pay) Act 2023
    • Workers (Predictable Terms and Conditions) Act 2023
    • Pensions (Extension of Automatic Enrolment) Act 2023
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Redundancy & Maternity Leave.  What is the law?

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Redundancy & Maternity Leave.  What is the law?

Redundancy & Maternity Leave.  What is the law?

Sadly, businesses sometimes need to cut costs in order to survive market conditions. This can involve making employees redundant.

Matthew from Consensus HR comments “Employers need to remember that there are set legal processes that must be followed in relation to fair reasons to dismiss someone, with redundancy being one of those. You should also remember that it is the job you are making redundant and not the person although the loss of the job means the person selected will be made redundant.  Nobody likes to make anyone redundant, but employers need to ensure that they consult, consult, consult and try everything possible to avoid the need to make redundancies.”

Many employers query how to manage a redundancy process involving staff on maternity leave. This article clarifies the issues involved.

Retaining employees on maternity leave

Employees do not have to be retained simply because they are on maternity leave. However, consultation is key. Acas explains: “Failure to consult a woman on maternity leave about possible redundancy is likely to be unlawful discrimination. A woman made redundant while on maternity leave must be offered any suitable alternative vacancy if you have one.”

Before making employees on maternity leave redundant, there are five important points to consider:

1. Genuine redundancy situation

You must be able to prove that there is a genuine need to reduce your headcount. Dismissing your employee because she has had a baby or is on maternity leave, is discriminating against her. This could lead to a discrimination claim. You must have evidence to prove why you need to make redundancies. For example, emails, reports, statistics and other contemporaneous documents showing a downturn in business or a reduction in work and the reasons for it.

2. Fair selection process

You must choose whom you are going to select for redundancy fairly and reasonably. This involves choosing a reasonable selection pool and applying fair, objective selection criteria to decide who should be at risk.

For example, if attendance is one of your selection criteria, you must discount any absence that relates to the employee’s pregnancy or maternity leave.  Likewise, if performance or attitude is one of your criteria and her last performance assessment was done while she was pregnant and was lower than usual, then you must take that into account when you score her.

3. Communication and consultation

It is easy to forget about employees that are not physically present at work. However, if you have an employee on maternity leave, you must consult with her and give her the same information as your other staff.

It is natural to feel worried about disturbing her maternity leave, however if you don’t consult with her, you risk a discrimination claim. You should consult with her if she is on maternity leave but should be flexible and sensitive in your approach.

For example, you can offer to have meetings at flexible locations or online if she prefers. Keeping in Touch days could be used for this. Also, ensure she has enough time to consider any information you provide, bearing in mind that she is on maternity leave.

Compulsory maternity leave period is two weeks after a mother has given birth. You should ordinarily progress the overall redundancy process and communications until after that time.

4. Prioritised selection

Before you select an employee on maternity leave for redundancy you must first offer her any suitable vacancy available within your organisation. This includes any vacancy across your corporate group. You must offer it to her proactively (without her having to ask for it) and without any interview or application process.

You don’t need to create a role for her or dismiss someone else to make way for her. However, if any suitable vacancy must be offered it to her. This means prioritising her over any other employees who are also at risk of redundancy (even if you would usually select another candidate).

A suitable vacancy considers:

  • the employee’s skills and experience, and
  • whether the terms, conditions, location and status of the vacancy are at least as good as her original role.

If you are unsure about whether the vacancy is suitable, you should discuss it with her as part of your consultation process. This will avoid a later complaint or claim that you unfairly withheld the vacancy.

5. Legal Entitlements

If you decide to make an employee redundant while she is on maternity leave, she will be entitled to:

  • Written reasons. You must proactively provide written reasons explaining why she is being made redundant and her employment contract is to be terminated. You should avoid any suggestion that she is being dismissed for any other reason.
  • Redundancy pay. If the employee would otherwise qualify for redundancy pay (contractual or statutory) then you will need to pay this to her. You do not have to pay statutory redundancy pay if she has unreasonably refused a suitable alternative role. However, it can be difficult to assess whether you are entitled to withhold statutory redundancy pay, so professional advice is recommended. (Contact us for an informal discussion.)
  • Your employee must be given notice that you are making her redundant, in accordance with the notice requirements in her contract. You should also inform her that she can appeal your decision. You are only required to pay her full notice pay:
  1. For any periods of her notice period during which she is entitled to enhanced maternity pay.
  2. If she is only entitled to the statutory minimum notice period as specified within her contract (or is not entitled to at least one week more than the statutory minimum).
  • Statutory Maternity Pay (“SMP”). Even if you make her redundant, your employee will remain entitled to SMP for the full 39-week period. This must be paid even if the 39-week period extends beyond the end of her employment with you.

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Are you considering a redundancy programme for your organisation? Make sure that your redundancy process is legally compliant, fair and effective. Contact the friendly experts at Consensus HR for an initial discussion without obligation.
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Redundancy & Maternity Leave.  What is the law?

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