April 2024 Reforms on Employment Law

Background

Redundancy situations fall into four categories:

1. Business closure – This is the closure of the business altogether.
2. Workplace closure – This can cover (1) the closure of one of several sites; or (2) a relocation to a new site.
3. The diminished requirement of the business for employees to do work of a particular kind.
4. The diminished requirement of the business for employees to do work of a particular kind at the employee’s place of work (i.e. the site at which the employee works has the diminished requirement, as opposed to a diminished requirement more generally in the business).

If an employer has a situation falling into one of the above categories, it can legitimately commence a redundancy procedure. In order for the procedure to be fair, it should involve (1) warning and consulting affected employees; (2) adopting a fair basis on which to select employees for redundancy (including identifying an appropriate pool of employees and selecting pursuant to a reasonable selection criteria); and (3) considering suitable alternative employment.

Under current rules, employees on maternity, adoption or shared parental leave who are selected for redundancy are entitled to take priority in being offered a suitable alternative vacancy should one be available (Enhanced Protection).

Reforms

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 were made on 28 February 2024 and came into force on 06 April 2024. It extends the right to be offered a suitable alternative vacancy when selected for redundancy in the following situations:

1. Pregnancy notified to an employer on or after 06 April 2024 – the Enhanced Protection starts when the employee notifies the employer of their pregnancy and ends on the day statutory maternity leave begins. For pregnant employees not entitled to maternity leave (e.g. those who suffer a miscarriage), they are protected during pregnancy from the date of notification until two weeks after the end of the pregnancy.

2. Maternity leave ending on or after 06 April 2024 – the Enhanced Protection applies from the start of their maternity leave until 18 months from the expected date of childbirth or the actual date of childbirth provided the employer is notified. The Enhanced Protection also applies to employees who have a stillbirth after the end of the 24th week of pregnancy or whose baby is born alive but does not survive.

3. Adoption leave ending on or after 06 April 2024 – the Enhanced Protection applies from the start of adoption leave until 18 months from the date of placement.

4. Shared parental leave (SPL) of at least six consecutive weeks which begins on or after 06 April 2024 – the Enhanced Protection is from the start of SPL until 18 months from the date of childbirth (in birth cases) or 18 months beginning with the date of placement (in UK adoption cases).

Clearly these reforms give better protection to employees who are pregnant, on maternity leave, on adoption leave or shared parental leave. In particular the reforms provide better protection to employees who have a stillbirth, as they benefit from Enhanced Protection for a further 18 months.

It is important for employers to be aware that once the employee has been selected for redundancy, this is when the Enhanced Protection applies. Should suitable alternative vacancies be available to employees with Enhanced Protection, they should take priority in being offered the vacancies. If employers do not prioritise employees with Enhanced Protection, they could potentially be exposed to claims of unfair dismissal (if an employee with enhanced protection is subsequently dismissed) and discrimination claims.  

By Zahid Reza