At present, where an employee on maternity leave is selected for redundancy, the employer has an obligation to offer any existing suitable alternative employment to such an employee in preference to others at risk of redundancy - Regulation 10 of the Maternity and Parental Leave Etc Regulations 1999 (MAPLE).
If Employers do not address matters falling within regulation 10, it may result in the employee's redundancy being automatically unfair and also giving rise to a discrimination claim on the grounds of pregnancy and/or maternity under the Equality Act 2010.
Regulation 10 does not mean that an employer can exclude an employee on maternity leave from the redundancy pool, or to move them into an alternative role to keep them safe, as that could give rise to sex discrimination claim by work colleagues who are also at risk of redundancy. Thus regulation 10 only kicks in when the employee on maternity is selected for redundancy.
The Protection from Redundancy (Pregnancy and Family Leave) Bill (the Bill), having started its life as a private member’s bill received Government backing on 21st October 2022, enhances redundancy protection rights for: pregnant women; others on child related leave (before they start their maternity), adoption, and shared parental leave after they return to work for a period likely to be 6 months.
The press release made it clear that protection will start from the point at which the employee tells their employer that they are pregnant.
Redundancy is a potentially fair reason for dismissing employees within the provisions of the Employment Rights Act 1996, but those employees falling within these proposed protected rights will have the right to be offered any other suitable alternative vacancy that exists in the Employer’s business, taking priority over every other employee at risk of redundancy who is not on maternity or other relevant leave. It is likely that the alternative suitable vacancy must be no worse than the worker’s previous employment terms and conditions of employment and status.
The Bill is still being considered by the House of Commons, and will have to go before the Lords, and is likely to be enacted in law sometime next year unless a Sunak led government will take a different view, and withdraw the government's support for the Bill.
If passed the Bill will apply to England, Wales and Scotland, but not Northern Ireland where employment law is devolved.
The article is for informational and educational purposes only and should not be relied upon as legal advice.
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