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It’s likely that my client will be undertaking a redundancy process with their staff in the coming weeks to reduce headcount.
They will need to pool their staff and select from that pool those who are at risk of redundancy. They’ve got a staff member who has recently returned from adoption leave, and another who is pregnant. Is there anything in particular they need to be aware of for these staff members?
A. Yes, following a change in the law from 6 April 2024, these individuals have enhanced protection during redundancy that your client will need to be aware of when it comes to pooling and offering suitable alternative employment.
It has long been the case that an employer must offer an employee on maternity, adoption and (in certain cases) shared parental leave who is at risk of redundancy a suitable alternative vacancy, if one is available, ahead of all other employees who are at risk.
The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 amended the law from 6 April 2024. Pregnant employees and those whose maternity, adoption or shared parental leave ended on or after 6 April 2024 now have a right to be offered a suitable alternative vacancy during a redundancy exercise, above all other employees, for a period of 18 months after the birth/adoption, and for the duration of their pregnancy. It will be unfair dismissal and discrimination if this does not happen.
As in every redundancy situation, your client must go through a fair and thorough process to ensure meaningful consultation. They must consult on the reasons for the redundancy proposals, alternatives that may mean the redundancy can be avoided, and go through a selection process with all the affected staff.
If after undergoing the selection process either of the employees above are within the group at risk of redundancy, they should be offered any suitable alternative employment that is available ahead of others who are at risk, under regulation 23 of Paternity and Adoption Leave Regulations 2002 (for the employee who has returned from adoption leave) and regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 (for the pregnant employee).
To be suitable alternative employment, it must be for work that is both suitable in relation to the employee and appropriate for them to do in the circumstances and be not substantially less favourable to them in relation to the associated terms and conditions, place of employment and capacity of the work, than if they had continued to be employed under the previous contract.
