Workforce change: a reminder of pregnancy and maternity rights

Many HR professionals will be familiar with the redundancy protections women on maternity leave have under Regulation 10 of The Maternity and Parental Leave etc. Regulations 1999 (Regulation 10). Similar protections apply during adoption leave and shared parental leave. Whilst those protections are important they have often been difficult to interpret and apply in practice.

Earlier this year, those protections were extended to include pregnant women, and for an 18-month period from birth or the date of placement for adoption. This article looks at the extended protections and how you need to adapt your redundancy processes to give effect to them.

Background

By way of reminder, the previous Regulation 10 protection applied in circumstances where, during an employee's ordinary or additional maternity leave period, it was not practicable by reason of redundancy for their employer to continue to employ them under their existing contract of employment.

In that situation, the employee is entitled to be offered a suitable alternative vacancy (where available). Importantly, if that vacancy could be suitable for more than one affected employee, it would need to be offered to the employee on maternity leave before being offered to anyone else.

A failure to comply with Regulation 10 would result in the affected employee being able to bring an automatic unfair dismissal claim.

One of the issues with how the protection used to work in practice (before the recent changes) was timing. For example, an employer could be faced with a redundancy proposal affecting two employees:

• Employee 1 who is due to return from maternity leave before the date on which the proposals take effect
• Employee 2 who is currently pregnant but is due to start maternity leave before the proposals take effect.

In the above scenario employee 1 is arguably not protected but employee 2 is. However, both are deserving of protection given their vulnerabilities and the unfortunate timing of the redundancy situation from their perspective. The extended protections are, in part, intended to address these types of anomalies. They are also designed to address a concern that women often face redundancy situations upon return from maternity leave.

Extended protections

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 came into force on 6 April 2024. They amend Regulation 10 (and the equivalent provisions of other family leave legislation) so they now apply where it is not practicable by reason of redundancy for an employer to continue to employ an employee under their existing contract:

• During the employee's maternity leave
• During the "protected period" of pregnancy (see below)
• During an "additional protected period" following the employee's return to work from maternity leave, adoption leave or from a period of six or more weeks of shared parental leave.

The protected period

The protected period of pregnancy begins from the date that the employee notifies their employer of the pregnancy (provided that notification took place on or after 6 April 2024). The protected period then ends on the day which statutory maternity leave begins (where the employee is eligible for statutory maternity leave).

If an employee is not eligible for statutory maternity leave, then the protected period ends two weeks after the date of childbirth or two weeks after the end of the pregnancy. For example, if an employee has a miscarriage or stillbirth within the first twenty-four weeks of pregnancy, the redundancy protected period ends two weeks from the end of the pregnancy.

Additional protected period

Employees who qualify for statutory maternity leave then benefit from the protections of Regulation 10 for an "additional protected period" which begins following the end of the employee's statutory maternity leave period and continues during any period of continuous employment, ending immediately before the "relevant day".

The "relevant day" is the day following a period of eighteen months from the expected week of childbirth or the actual date of childbirth (only where the employee has notified the employer of this date before the end of statutory maternity leave or as soon as reasonably practicable afterwards).

As set out above, similar protections apply for adoption leave and shared parental leave.

So employees are now protected for 18 months from the date of birth (or expected date of birth) or date a child is placed for adoption. The protection lasts for the same 18 month period regardless of how much adoption or maternity leave someone takes, although they must take at least six weeks for the shared parental leave protection to apply.

Practical tips and issues

Any employers currently running or considering a redundancy exercise will need to be mindful of the new protections. The following practical considerations arise:

• When commencing a redundancy process employers need to look back at:
  • When they were notified of employees' pregnancies (i.e. was it before, on or after 6 April 2024).
  • When potentially affected employees returned from periods of family leave – those who returned before 6 April 2024 will not benefit from the protections.
• Employers may be concerned about treating employees differently depending on when they were notified of a pregnancy or when they returned from family leave. It is lawful to do so where the reason is these extended protections but some employers may want to take a more consistent and generous approach. That can be done as long as it does not compromise the rights of those to whom the extended protections actually apply.
• If employees notify their employer of pregnancy late in a process but before decisions on alternative employment have been made then that could cause significant disruption to a process. For example, other employees may have been interviewed for a role that can no longer be offered to them without risking an automatic unfair dismissal claim from the pregnant employee.
• Clear communication is important to ensure that pregnant employees understand their rights and understand the benefits of notifying you of their pregnancy as soon as they feel comfortable doing so.

One unintended consequence of the extended protections is that some pregnant employees may feel they need to notify their employers of their pregnancy earlier than they would prefer to. Many pregnant women opt to wait several weeks (or months) before they announce their pregnancy, especially in a professional capacity. Employers should therefore ensure that they emphasise that any notifications in the context of a redundancy process will be treated confidentially and that it will be up to an employee as to when their colleagues find out about their pregnancy. Line managers of employees involved in redundancy may benefit from some training, coaching and support on holding these types of conversations.

Potential future developments

Following the election of the Labour Government in July, we are expecting further reforms to maternity protections. In particular, Labour proposes to make it unlawful to dismiss a woman within 6 months of her return from maternity leave except in specific circumstances. We do not yet know what the permitted exceptions will be, although it would seem likely that gross misconduct will be one of them. However, this proposal appears to go further than the extended redundancy protections and it may become more difficult to dismiss women for redundancy following their return from maternity leave.

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If you are considering a large scale restructure and want to refresh your templates (or don't know where to start) then WBD Navigate's interactive redundancy toolkit is worth checking out. Please contact a member of the team if you would like a demo.