The Protection from Redundancy (Pregnancy and Family Leave) Bill is likely to be passed in the next few weeks. It will significantly enhance the legal protections available to expectant and new parents. Although it's likely that there will be some lead-in time before it comes into effect, employers should start reviewing their internal processes now, to ensure that they are not caught out.
What does the law currently say?
Employees who are on maternity leave, adoption leave or shared parental leave are entitled to return to their role unless it's not reasonably practicable to do so (i.e. in a redundancy/ restructure scenario). If their role is redundant, they have the right to be offered a suitable alternative role as a priority (if such a role exists). If the employer does not do so, their dismissal on grounds of redundancy would be automatically unfair.
Essentially, the law requires employers to discriminate positively in favour of employees on maternity/shared parental/adoption leave when making redundancies - the law recognises that such employees are particularly vulnerable during the period of leave. However, at present pregnant employees and those who have returned from leave do not enjoy this favourable treatment in relation to redundancies (although they have separate protection against detriment and dismissal, and pregnancy and maternity are protected characteristics under the Equality Act).
What's changing?
The requirement to offer the employee a suitable alternative role in preference to other employees will apply in a wider range of scenarios. Instead of applying only to redundancies made during maternity (or adoption/shared parental) leave, it will apply from the moment a woman tells her employer she is pregnant, and will continue to apply for a period of time after an employee returns from maternity, adoption or shared parental leave (the length of the period can be set out in regulations - currently the Government has said it intends this period to be 6 months).
What should employers do?
Employers should ensure that their internal systems for recording an employee's notification of their pregnancy are adequate, as the new rules will make it essential to be clear about when such notification is received. Employers should review and update their maternity, adoption and shared parental policies when we have a clear indication of when the new rules will come into force.
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