Pregnant employees and employees who have already returned to work after a period of family leave may soon be entitled to enhanced rights to be offered suitable alternative employment in redundancy situations, if a new Bill passing through Parliament becomes law. The proposals, initially put forward by a Private Member’s Bill led by Dan Jarvis, but which now have government backing, are progressing through the Parliamentary process and last Friday had the second reading in the House of Lords.

So what’s going to change?

Currently, if a redundancy situation arises whilst an employee is on maternity, adoption or shared parental leave, their employer must offer them ‘first dibs’ on any suitable alternative vacancies (where they exist). In other words, whilst on a period of family-related leave, employees who are facing redundancy effectively have the right to first refusal of any suitable alternative roles, irrespective of whether they are the best candidate or the most qualified. However this right currently only applies once the family leave has begun and stops on the employee’s return to work. This means that pregnant employees are not protected and nor are employees protected once they have returned to work post leave.

So why the need for change? 

These enhanced protections have been on the horizon for some time. Research published in 2016, by the Department for Business Innovation and Skills and the Equality and Human Rights Commission, found that 77% of mothers had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave and 11% reported that they were either dismissed, made compulsorily redundant (when others in the workplace were not), or treated so poorly they had to leave their job. This was followed by an inquiry by the Women and Equalities Select Committee (with one of the key findings being that discrimination was still experienced by mothers returning from maternity leave) and a government consultation and response which referenced the need to extend the current protection. These expected reforms have been welcomed by many, including certain trade unions and charities, and praised as being a step in the right direction to offer parents more support, especially in these uncertain economic times. However some charities have expressed concerns that this doesn’t go far enough. Either way, for employers the changes certainly will have an impact.

If this Bill becomes law, this protection will be extended significantly and will apply from when an employee tells their employer they are pregnant, until 18 months after birth (ie six months after an employee returns to work, assuming they were away on leave for the year). If, during this ‘protected period’, the employee faces redundancy and is not offered a suitable alternative vacancy where one exists, their dismissal for redundancy would be automatically unfair and/or they may also have grounds for an unlawful discrimination claim on the grounds of sex and/or maternity, for example resulting from the procedure followed.

If the proposals are introduced (and the expectation is that they will be), employers will need to think about the following:

• Managing a short-term change in role: if a redundancy situation arises after an employer is notified of pregnancy but before an employee’s family leave commences, the employer would need to offer the employee any suitable alternative role even if the employee is about to go on maternity leave. This would mean the employer would need to then find cover for the employee whilst the employee is on leave.
• Making sure that redundancy processes are set up to identify those employees who may be entitled to this additional protection and to ensure they are offered any suitable alternatives. These protections could be easy to overlook where an employee has been back from leave for a few months, so robust record-keeping will be needed.
• Updating policies and making sure that line managers and supervisors are aware that employees may have this priority status. It is important to note that this priority applies even if it is just one redundancy that is being made so, if you have managers who deal with individual redundancies without input from the HR team, they will need to know to take this into account.

Whilst these changes are not yet in force, employers who may be considering the need for redundancies in the coming months should keep an eye on developments as the consequences of not adhering to these changes may be expensive.