Improved Redundancy Protection for Maternity Leave

New Regulations came into force on 6 April 2024 in England and Wales to give pregnant employees and those on maternity leave or family-related leave better protection from redundancy.

Previously, employees on maternity leave, shared parental leave or adoption leave had special protection in a redundancy situation whilst they were taking such leave. From 6 April, the new Regulations extend that priority status to pregnant employees and those who have recently returned from maternity leave, Shared Parental Leave (SPL) or adoption leave too.

What are the improved redundancy protection regulations?

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends redundancy rights so that they apply:

from the point an employee informs their employer they are pregnant
until 18 months after the Expected Week of Childbirth (EWC), the child’s birth date, or date of adoption, for employees returning from maternity leave, SPL or adoption leave.

It is important for employers to be aware of this extension in the rights of such employees because a failure to give priority protection in a redundancy situation to them can result in a redundancy dismissal being both automatically unfair and discriminatory.

This change in redundancy protection regulation for pregnant employees came at the same time as other family-related regulations changes including changes to flexible working, Paternity Leave and the right to one week of Carer’s leave.

How should an employer be notified of pregnancy?

For maternity leave purposes, a pregnant employee is not required to inform her employer of her pregnancy until the 15th week before the EWC. However, she will not be able to benefit from rights such as the entitlement to paid time off for antenatal care, risk assessments and the statutory protection on account of her pregnancy from discrimination or dismissal until her employer is made aware that she is pregnant. Therefore, from the employee's point of view, it might be advisable to inform her employer of her pregnancy earlier if possible.

To qualify for Ordinary Maternity Leave (OML), an employee must comply with the notification provisions set out in the relevant Regulations. These are that she must notify her employer no later than the end of the 15th week before the EWC (or, if that is not reasonably practicable, as soon as is reasonably practicable) of:

The fact that she is pregnant.
The EWC.
The date when she intends her OML to start, which must be a date no earlier than the beginning of the 11th week before the EWC.

The employee’s notification doesn’t need to be in writing unless the employer requests this. However, it is advisable for an employee to give notice in writing of at least the fact of her pregnancy.

Does this mean that an employer cannot make an employee with this protected status redundant?

If a redundancy situation arises at any of the following times and "it is not practicable by reason of redundancy" for the employer to continue to employ a relevant employee under their existing contract, the employee is entitled to be offered a suitable alternative vacancy (where one is available). The vacancy must be offered before the employee's existing contract ends and start immediately after the end of that contract. The relevant times are:

During maternity leave.
Since 6 April 2024, from the point the employee tells her employer she is pregnant (verbally or in writing); and
6 April 2024, during the 18 months following the employee's return to work from maternity leave (or adoption leave or SPL).

What happens if an employer gets it wrong?

If the employee is not permitted to return to the same job on no less favourable terms and conditions, or (where it is not reasonably practicable to permit her to return to the same job after Additional Maternity Leave) if the employer does not offer the employee a suitable alternative job, the employer will be at risk of a claim of pregnancy and maternity discrimination and automatic unfair dismissal (if there is a dismissal) and/or unlawful detriment (if there is no dismissal).

What happens if an employee loses their baby/has a miscarriage? Are they still entitled to this protection?

Miscarriage and stillbirth are forms of pregnancy loss. A stillbirth is when a baby is not born alive after at least 24 complete weeks of pregnancy. If a baby dies before 24 weeks, it is known as a miscarriage or late foetal loss.

All the legal consequences of childbirth (including the right to maternity leave) apply where a child is stillborn after 24 weeks of pregnancy, or where a child is born alive at any stage of the pregnancy but then does not survive (known as neonatal death).

In the event of a stillbirth or neonatal death, the employee's maternity leave will start the day after the birth, if it had not already started. The employee can return to work at any time before the end of her maternity leave period, on giving eight weeks' notice. She may give less notice if the employer agrees, but she must not return to work in the first two weeks (or four weeks if he employee is a factory worker) after the birth (the compulsory maternity leave period).

In the event of a stillbirth or a neonatal death, both parents may have the right to statutory parental bereavement leave and pay (in addition to maternity and paternity leave).

Since a miscarriage in the first 24 weeks of pregnancy is not classed as "childbirth", neither the mother nor her partner has any statutory rights to maternity or paternity leave. Neither do they qualify for parental bereavement leave. Any absence on medical grounds as a result can be treated in the same way as pregnancy-related sickness.

We’re here to support you. If you have any questions surrounding Employment Laws, please contact the Banner Jones Employment Law team at employment@bannerjones.co.uk