Before April 2024, special redundancy protection was exclusively granted to employees on maternity, adoption, or shared parental leave during their respective leave periods.
However, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, which came into effect in April 2024, has broadened this protection to include pregnant employees and those returning from maternity, adoption, or shared parental leave—the legislative change aimed to offer additional support to employees with family commitments during business reshuffles and closures.
Starting from 6 April 2025, employees taking neonatal care leave will also qualify for enhanced redundancy protection if they take at least six continuous weeks of neonatal care leave.
Consequently, there is now a wider range of enhanced redundancy protections as well as an expanded group of protected employees that an employer must consider, complicating the process of planning redundancies and team restructures. In this guide, we outline who qualifies for enhanced redundancy protection and the duration of such protection. We also address the practical challenges that arise from a larger number of employees being offered protected status and suggest strategies for employers to effectively manage these impacts.
What is Redundancy Protection?
Redundancy protection does not prohibit making employees redundant during the designated protected period. Employees with priority status may still be considered for redundancy. The protection is activated when it comes to the allocation of alternative roles. If a suitable alternative vacancy exists for an employee with redundancy protection, that employee must be offered that position before any other candidate, regardless of whether someone else is more qualified or experienced for the role.
A suitable alternative vacancy is defined as one that aligns with the employee’s skills and experience, and the terms and conditions should be similar to the current role.
In the past, when a redundancy situation arose, employers were legally required to provide suitable alternative employment to employees on maternity, adoption, or shared parental leave, should a vacancy be available, thereby granting them priority protection against dismissal. This protection was limited to the duration of their leave and ceased once the employee returned to work.
With the enactment of the Protection from Redundancy Act 2023, pregnant employees who have not yet commenced maternity leave, as well as those who have recently returned from maternity, adoption or shared parental leave, are now also afforded enhanced protection against redundancy.
Should an employer neglect to provide a suitable alternative vacancy to an employee with redundancy protection, the dismissal could amount to an automatic unfair dismissal or discrimination, potentially resulting in legal action and compensatory claims.
Who is Covered by the Law?
The law applies to any employee who is:
- Pregnant
- on maternity leave
- on adoption leave
- on shared parental leave
- suffered a recent stillbirth or marriage
- recently returned to work following maternity, adoption or shared parental leave
From 6 April 2025, employees who take six continuous weeks of neonatal care leave for infants born on or after this date will also gain enhanced redundancy rights. Neonatal care leave is designed to support an employee whose newborn requires medical care, enabling them to spend time with their child, without it affecting their maternity, paternity or shared parental leave entitlements. The extended protection lasts 18 months after the birth and includes priority for suitable alternative employment.
It is important to note that the law exclusively protects employees, which means that agency workers, casual workers or those on a zero-hours contract are unlikely to be covered. Additionally, the legislation does not extend to other types of leave, such as paternity leave.
How Long Do Employees Benefit From Enhanced Redundancy Protection?
The duration of redundancy protection for employees varies based on the type of leave an employee is taking.
Pregnant Employees Who Take Maternity Leave
Start: The protection begins when an employee informs their employer of the pregnancy.
Ends: It concludes 18 months after the baby’s birth. If an employee does not provide the exact birth date, the protected period will end 18 months from the expected week of childbirth.
Employees Who Have Experienced a Miscarriage or Stillbirth
Start: The protection commences when the employer is informed of the pregnancy.
End: If a miscarriage occurs within the first 24 weeks of pregnancy, the redundancy protection ends two weeks from the end of the pregnancy. In the case of a stillbirth after 24 weeks of pregnancy, the protected period extends for 18 months from the date of birth.
Employees taking Adoption Leave
Start: The protection commences on the first day of adoption leave.
Ends: It lasts for 18 months from either the start date of the adoption placement or the date the child arrives in England, Scotland or Wales for overseas adoptions.
Employees taking Shared Parental Leave (SPL)
Start: The protection begins on the date a period of SPL begins.
End: If an employee takes less than 6 weeks' leave, the protection ends on the last day of the leave block. If the leave exceeds six weeks of continuous SPL, it lasts for 18 months from the date of the child’s birth.
For discontinuous leave, the protection period concludes at the end of each period of shared parental leave.
An employee who has previously taken adoption or maternity leave will retain the redundancy protection for that specific type of leave.
Employees taking Six Continuous Weeks of Neonatal Care Leave (from April 2025)
Start: It commences on the date the neonatal care leave starts
End: It ends 18 months from the date of childbirth.
Additionally, employees who have taken maternity, adoption, or shared parental leave will benefit from the redundancy protection of that specific type of leave.
Key Considerations for Employers
Following the legislative changes implemented last year, there has been a significant rise in the number of people with redundancy protection status, which may present practical challenges for employers.
For instance, new and expectant mothers can now potentially extend their period of redundancy protection to about two years, assuming they notify their employer about their pregnancy at the 12-week mark, take a year of maternity leave, and are then subsequently protected for an additional six months. Fathers taking adequate shared parental leave are also entitled to 18 months of protection.
More than One Person Who has Priority for a Vacancy
In situations where multiple employees have priority for a position, employers may encounter a scenario where the number of employees with redundancy protection exceeds the available suitable alternative vacancies. There is limited guidance on how to manage this complex situation. The law provides that an employee is entitled to be offered a suitable alternative vacancy if it exists, but it does not provide exceptions for cases where multiple employees share the same priority rights.
To address selection, employers must carry out an additional selection process among the employees with priority status and maintain thorough documentation to justify why a role was not considered ‘suitable.’ In making these decisions, employers will need to exercise caution to avoid discrimination against employees who are pregnant or on maternity leave, ensuring that they are not treated unfavourably during that specific period (which is shorter than the newly established redundancy protected period). That particular protection for discrimination ceases at the end of maternity leave.
Calculating, Documenting and Triggering Protection Periods
Employers may also encounter challenging practical issues in this context. In certain situations, women may feel compelled to notify their employer of their pregnancy at an early stage (for instance, before their 12-week scan), or there may be an increase in employees opting for shared parental leave, in anticipation of a redundancy process. In cases of miscarriage, determining the relevant dates can be particularly complex and sensitive.
Employers will need to ensure they maintain accurate and up-to-date records regarding the commencement dates of family leave, pregnancy notification dates and regrettably, any miscarriages, to effectively calculate protection periods should a restructuring exercise be undertaken.
Fairness and Manager Training
From a policy standpoint, there are compelling reasons to safeguard new and expectant parents from discrimination and prevent them from having to compete for redeployment opportunities during a vulnerable period. However, there may be specific instances where the application of these rules will feel unjust to managers and employees, especially where it leads to the loss of a high-performing employee in favour of an employee with protected status.
Additionally, some employees may feel they deserve greater priority; for example, women returning from twelve months of maternity leave may perceive themselves as being disadvantaged compared to men who took a relatively short period of shared parental leave a while ago, leading to concerns that their protection has been unfairly diluted. It is essential to manage these situations with care, ensuring that managers are well-informed about the law and receive the necessary training to enhance their skills and confidence in handling these situations.
Systems for Identifying Suitable Alternative Roles
Given the increased number of employees eligible for priority redundancy protection, employers must modify their systems to pinpoint potentially suitable job openings across their operations. Establishing clear guidelines is also useful for consistently assessing whether a position qualifies as a ‘suitable’ alternative.
Consequences of Getting it Wrong
Failing to provide a priority employee with a suitable alternative vacancy could result in the employee claiming automatic unfair dismissal, which does not require two years’ qualifying service, and could potentially lead to a compensatory award that is not capped. In certain instances, the employee may also have grounds for a discrimination claim.
Proposed Further Changes
The Employment Rights Bill proposes to further extend existing redundancy protections to encompass any form of dismissal affecting expectant and new parents within six months of their return to work, with exceptions in specific cases. This will be enacted through secondary legislation.
Unfortunately, the ‘specific circumstances’ that would allow an employer to dismiss a protected employee within six months of their return to work remain unclear until secondary legislation has been published.
The government has indicated that most reforms are unlikely to be implemented before 2026 and that consultations will be necessary regarding the secondary legislation to implement the government’s plans in relation to dismissal protection. We will continue to keep you updated as more information becomes available.
Talk to a Specialist Employment Lawyer
If you are contemplating a restructuring within your organisation and are considering making redundancies, or you seek more information or advice on what priority redundancy protection means for your business, please reach out to one of our experienced employment lawyers on 0300 303 2071 or email us.
