What are enhanced redundancy protections?
Enhanced redundancy protection gives certain employees priority for alternative jobs in a redundancy situation.
If an employee with this protection is selected for redundancy, they have the right to be offered any suitable alternative vacancy before any other employees who are also at risk of redundancy. This is a rare example of lawful positive discrimination.
An employer's failure to offer a suitable alternative role (if one exists) to a protected employee first will likely make the dismissal automatically unfair.
What is a suitable alternative vacancy?
A vacancy qualifies as a suitable alternative if it:
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is available within the employer’s business (or the business of any successor of it or an associated employer) - either once the employee is due to return to work, or before this time but after the employee’s redundancy has been established
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is suitable for the employee based on their personal circumstances and work experience, and
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is offered on terms that are not substantially less favourable than the terms of the role that the employee previously held
For more information, read Redundancy.
Who is entitled to enhanced redundancy protection?
The enhanced protection applies during a specific protected period. The exact period depends on the type of leave and when the employee notified their employer.
Pregnancy
An employee is protected from the date they tell their employer about the pregnancy.
If the employee has a miscarriage before 24 weeks, the protection ends two weeks after the end of the pregnancy. If it happens after 24 weeks (ie a stillbirth), they are entitled to maternity leave, and the maternity leave protections apply.
Maternity leave
An employee is protected from redundancy during and after maternity leave. The protected period covers:
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the full duration of the employee's statutory maternity leave
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an additional period after they return, lasting until 18 months after the child's actual date of birth
Adoption leave
An employee is protected from redundancy during and after adoption leave. The protected period covers:
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the full duration of the employee's statutory adoption leave
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an additional period after they return, lasting until 18 months after the child was placed for adoption. This is either the date the adoption placement started or, for overseas adoptions, the date the child enters England, Scotland, or Wales
Shared parental leave
An employee is protected from redundancy during shared parental leave (SPL). However, the rules are more specific:
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protection during leave - the employee is protected for any period they are on SPL
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protection after leave - if the employee has taken at least six continuous weeks of SPL (and hasn't also taken maternity or adoption leave), they are protected for an additional period after they return. This protection lasts until 18 months after the child's date of birth (or the date of adoption placement/entry into Great Britain). This extension applies to any block of six or more weeks of SPL
For employees who take fewer than 6 consecutive weeks of SPL, the protection period ends on the last day of the leave block.
Neonatal care leave
An employee who takes neonatal care leave is protected from redundancy.
The redundancy protected period starts on the first day of the neonatal care leave. The length of this protection depends on how much leave is taken:
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if the employee takes less than six continuous weeks of neonatal care leave, the protected period ends on the last day of their leave
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if the employee takes six or more continuous weeks of neonatal care leave, they get additional protection. This protected period ends 18 months after the child's date of birth (or the date of adoption placement/entry into Great Britain)
How does this affect the redundancy process?
While enhanced protection doesn't prevent an employee from being made redundant, it adds crucial steps to the process. Employers should always ask themselves the following questions when redundancies involve someone who is currently pregnant, out on maternity, adoption, or shared parental leave, or who has just returned from one of these types of leave:
1. Is the redundancy genuine?
It's crucial that any redundancy is made for a genuine reason (eg because the role is no longer viable due to changes in business or automation). Moreover, an employer should consider whether the redundancy is genuinely necessary while an affected employee is on maternity, adoption, or shared parental leave, or otherwise benefiting from additional protection from redundancy due to pregnancy or family leave.
An employer cannot make an employee redundant because they are pregnant or have taken family leave. This would be unlawful discrimination and automatically unfair dismissal.
2. How do I select employees for redundancy?
Any selection criteria used to determine who is at risk of being made redundant should be transparent, objective, measurable, and non-discriminatory.
Crucially, an employer must not use criteria related to the employee's pregnancy, absence on family leave, or anything connected to it (eg pregnancy-related sickness). Using these would be discriminatory.
For more information, read Redundancy pooling and selection.
3. How do I consult employees on maternity leave?
Employers must consult with all employees at risk of redundancy, including those on family leave, or anyone off work due to pregnancy-related sickness. They must discuss the reasons for the proposed redundancies and any alternatives (eg alternative roles within the business).
4. Is there a suitable alternative?
This is the most critical part of the process for protected employees. Employees with enhanced protection have the right to be offered any suitable alternative vacancy first.
This means they do not have to apply or compete for the role. This right puts them ahead of any other employees who are also at risk of redundancy. Failing to offer a suitable vacancy (if one exists) to the protected employee first will likely make their dismissal automatically unfair.
What happens to statutory pay if an employee on family leave is made redundant?
When making an employee redundant, it's essential to understand how the dismissal affects their entitlement to statutory payments, such as statutory maternity pay (SMP).
Is an employee who's made redundant entitled to statutory maternity pay?
This depends on when their employment ends. If an employee is made redundant:
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before the 15th week before the baby is due (ie the qualifying week), they are not entitled to SMP. They may be able to claim maternity allowance instead
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after the qualifying week, their SMP entitlement is protected. They are entitled to receive their full 39 weeks of SMP, even if their job ends. This is in addition to any relevant redundancy payment.
Can maternity pay be set against notice pay?
Yes. If an employee is dismissed (eg for redundancy) and is entitled to be paid during their notice period, an employer can offset their SMP payments against their notice pay.
For example, if an employee is due four weeks' notice pay but also has two weeks of SMP left, the employer would pay:
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two weeks of SMP plus a 'top-up' to their normal full pay
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two weeks of normal full pay
In effect, the employee receives their full notice pay, and the SMP payment forms part of it.
Following a fair and lawful redundancy process is crucial, especially when enhanced protections apply. If you need to manage redundancies, you can make an At risk of redundancy letter, a Redundancy consultation letter, or a Dismissal for redundancy letter. Do not hesitate to Ask a lawyer if you have any questions about your specific situation.
