21 Jun 2023
By Dawn Robertson, Partner & Accredited Specialist in Employment Law, BTO Solicitors LLP
The Redundancy (Pregnancy and Family Leave) Bill 2023 is now an Act of Parliament (“the Act”) and will come into force in July 2023. However, the new protections set out in the Bill will only commence when further secondary legislation is made. There is no date for this yet.
Employers will need to understand the new rules and be aware of the risks of discrimination and unfair redundancy prior to maternity leave and upon returning to the workplace.
The Act aims to further protect parents’ rights in relation to redundancy, but this is not the only change to “family friendly” rights.
The Neonatal Care (Leave and Pay) Bill has also become an Act of Parliament now. The Neonatal Care Act 2023 gives parents up to 12 weeks paid neonatal care leave (this is in addition to other leave and paid entitlements such as maternity and paternity leave) where a parent’s new born child has been admitted to neonatal care for 7 days or more. This new right is expected to be introduced from April 2025.
Maternity leave - current framework
Currently, the period of statutory maternity leave is 52 weeks. This is composed of ordinary maternity leave (the first 26 weeks) and additional maternity leave (the last 26 weeks). There is no obligation to take the full 52 weeks offered, however, the first two weeks leave after the baby is born is mandatory leave.
Statutory Maternity Pay is received for up to 39 weeks, where eligible.
Right to return to work
Once the period of ordinary maternity leave is over, a new parent has the right to return to the same job they occupied prior to their leave. An employee can still return after additional maternity leave, on the same terms, however, if significant changes have been made to the organisation, a similar job may be offered.
Risk of redundancy
Currently, Regulation 10 of the Maternity and Paternal Leave etc. Regulations 1999, places an obligation on employers to offer suitable alternative employment to an employee who is on maternity leave as soon as their job is at risk of redundancy, if a vacancy exists. This is a very important right and gives those on maternity leave a preferential right to be offered such a vacancy, in preference to others in the company who are also facing redundancy. It does not, however, prevent the employer selecting the employee for redundancy, or dismissing her if there are no suitable vacancies. Failure to comply with Regulation 10 will make any dismissal automatically unfair (and no minimum period of service will be needed) and may lead to a claim of discrimination.
Regulation 10 only protects employees throughout the period of maternity leave, which could allow employers to simply wait until an employee has returned to work from maternity leave before announcing their redundancy, which would not require compliance with Regulation 10.
The Redundancy (Pregnancy and Family Leave) Act 2023
The Act is intended to strengthen the protection against pregnancy and maternity discrimination. The Act allows the government to bring in an extension to the period of protection in cases of redundancy. The intention is that the protected period (during which the employer has an obligation to offer suitable vacancies if the employee’s role is redundant) will last from when she informs the employer of the pregnancy, until 6 months after her return to work.
This change will prevent employers from benefiting from the perceived loophole within Regulation 10, and instead will protect expectant and new mothers’ positions in the workplace. It will also relieve some of the pressure of job insecurity while adjusting to parenthood.
This is an extremely important change – the original Regulations 10 rights are not very widely known to employers, and can lead to employment tribunal claims for which there may be no defence.
The proposed extension to the protected period means that these claims may become more common, and more employers may be faced with significant liability unless they are aware of, and comply with, their legal obligations.
Watch this space for an update on when these new rights will take effect.
Conclusion
Employers should be aware of the introduction of these new Acts and the changes which will be made, as the law seeks to strengthen the rights and protections afforded to new mothers and partners in the workplace.
dro@bto.co.uk / 0131 222 3242 / www.btoemploymentlaw.co.uk
