Navigating enhanced redundancy protection for employees

Navigating enhanced redundancy protection for employees

From 6 April 2024, legislation around redundancy protection for employees who are pregnant has been amended.

In a restructuring exercise, two employees’ roles were placed at risk of redundancy. Although both were suitable candidates, one was on maternity leave at the time and, following interviews, the male employee was considered the better candidate and the female was made redundant. In this case, the redundant employee successfully claimed that her dismissal was automatically unfair. Both got an equal crack of the whip in being considered for the new role, so what was wrong with this process?

The employment tribunal ruled that the redundant employee, who was on maternity leave at the time, had a right to be offered the alternative role without being put through a competitive process. This is because there is a legal provision that states that where an employee who is on maternity leave is selected for redundancy, if a suitable vacancy exists it should be offered to that employee. It was not open to the employer to assess the employee's suitability for it through a competitive interview process.

This right was originally introduced in the UK in 1999 due to Parliament’s recognition that women on maternity leave and new parents were particularly vulnerable to being unfairly dismissed.

What has changed?

Since 6 April 2024, for employers in England, Scotland and Wales (but not Northern Ireland where employment law is devolved), the legal obligation for employers to offer any available suitable alternative employment to employees on certain types of family leave has been extended.

The amended legislation extends the right of an employee selected for redundancy to be offered a suitable alternative position where they have informed their employer they are pregnant. There is also an additional six-month protected period after returning to work from maternity leave, adoption leave or shared parental leave. Women who miscarry before informing their employer they are pregnant are also covered where they inform their employer of the pregnancy within two weeks thereafter.

As before, where there is a suitable available vacancy during this extended protected period, the employee is entitled to be offered the job without having to go through a competitive selection process.

This provision gives the protected employees priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination. If the employer does not comply with this requirement, an employee will have a claim for automatically unfair dismissal.

"Employers embarking on redundancy or restructuring exercises need to be aware of this legal extension"

This extension to the redundancy protected period is a response to research commissioned by the government and the Equality and Human Rights Commission in 2015. It found that 77% of 3,254 mothers surveyed said they had a negative or possibly discriminatory experience during pregnancy or maternity leave, or when returning to work from maternity leave. Of those surveyed, 11% reported they had felt forced to leave their job.

Some maternity rights charities have expressed misgivings about the new extended legislation which, they say, entrenches a broken system that does not work and does not protect women. Campaign groups and private members bills had urged the Government to consider implementing a system similar to that used in Germany. Under that system, women who are pregnant or on maternity leave can be made redundant only in specified circumstances; albeit these proposals were not adopted by the Government.

One recent example of maternity-related discrimination is of an employee who had a contract to work part-time hours. During her maternity leave, her role was changed to fulfil the responsibilities of a full-time job. On her return from maternity leave, in what was described by the employment tribunal as ‘gas lighting’ by her employer, she was pressured to work longer hours, beyond what was required in her contract.

She was told by one of her managers to "prioritise things a bit better and get your head in the right place and get your mindset right.” After leaving her employment following the deterioration of her mental health, she submitted a data subject access request and discovered a letter that showed there were plans to demote her while she was pregnant. The employee brought a successful legal claim, for which she was awarded £60,000 on the basis of maternity discrimination.

What do employers need to do to comply?

Employers embarking on redundancy or restructuring exercises need to be aware of this legal extension to the period of redundancy protection. They should ensure they have noted during the redundancy consultation process any employees who have informed their employer they are pregnant or who have recently returned from certain types of family leave. Given the longer period of protection, this priority right to suitable alternative employment could be overlooked.

This is important because a failure to give priority protection can result in a redundancy dismissal being automatically unfair (although not necessarily discriminatory). This could put the employer at risk of an unfair dismissal award even if they have, in all other respects, been fully consulted on the redundancy prior to their dismissal.

Where the employer decides not to offer an employee and alternative role during their protected period, they should document the reasons and be prepared to be challenged on this (or cross examined on this in any relevant tribunal claim).

It may of course often be the case, particularly in smaller businesses, that an alternative vacancy may simply not exist, in which case this legal duty is not triggered.

Employers should always bear in mind that legal obligations are a minimum standard. At a life-changing time – during pregnancy or as new parents, when employees most need job protection and where employers are looking to retain staff, employees will long remember the employer that supported them during this period of their lives.