At the moment, the law states that where employees on maternity leave, shared parental leave or adoption leave are at risk of being made redundant, employers must offer suitable alternative employment to them ahead of anyone else that is also selected for redundancy. So for example, if you have 5 employees doing the same role and you need to reduce the numbers to 3, if one of the employees is on family-friendly leave at the time of the redundancy exercise then they have to be given one of the available roles.
This is sometimes known as a ‘trump card’, as people in that situation have to automatically be offered the suitable available roles by their employer, even if they are not the best candidate.
From 6 April 2024, this ‘trump card’ is going to be extended further, so that as well as applying during family-friendly leave itself, it will also apply in the following circumstances:
- Employees who notify their employer that they are pregnant on or after 6 April 2024 will be protected up until the day their statutory maternity leave starts (as well as being protected during maternity leave as they are now).
- Where an employee is on maternity leave, they will be entitled to 18 months’ protection, starting from the week after the expected (or actual) week of childbirth. Where an employee is on adoption leave, they will be protected for a period of 18 months after the date of the child’s placement. This means that for those employees who take 12 months’ maternity or adoption leave they will continue to be protected for 6 months after they return to work.
- The rules around shared parental leave are also undergoing change, but this is more nuanced and employees will only qualify if certain criteria apply. Given the complexity around shared parental leave it is always best to take specific advice about whether the particular situation you are dealing with might be affected.
It will be important for employers to be mindful of these changes so that they are not inadvertently caught out. Although most businesses are aware of the extensive protection offered to employees during pregnancy and whilst on maternity/adoption leave, the fact that the protection will be continuing after the employee returns to work means that this is something else that will need to be taken into account before conducting any redundancy selection exercise.
Employers should be wary of the fact that failure to apply the ‘trump card’ (where vacancies actually exist) will risk claims for automatically unfair dismissal and unlawful discrimination. Do get in touch with us if you need legal guidance on the best way to tackle a fair redundancy process.
If you would like assistance with an employment issue, please contact any member of our Employment Team.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.