Extension of Legal Protections for Employees During and After Parental Leave
New family friendly legislation which came into effect in Great Britain on 6th April 2024, under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 and updates to the flexible working provisions aim to bolster existing redundancy protections for pregnant employees and new parents returning from maternity, adoption, or shared parental leave and to make flexible working more accessible.
Previously, in a redundancy situation, employers were required to prioritise employees on maternity, shared parental, or adoption leave for redeployment to a suitable alternative position during their leave. The new legislation will extend this protection to cover the period of an employees’ pregnancy from the moment the employee informs their employer of their pregnancy/adoption and will extend for 18 months after the child’s birth, placement for adoption or the child’s arrival in Great Britain for overseas adoptions. If the employee has not informed their employer of the exact date of birth/placement or arrival in the country of a child, the protection will extend 18 months from the expected week of childbirth/ placement for adoption or arrival. Additionally, employees transitioning from maternity or adoption leave to shared parental leave retain the same protections. The enhanced protections will apply to employees who notified their employers of their pregnancy/adoption before the new legislation came into force on 6th April 2024, however, to receive the benefit of the protection these employees will need to notify their employers again after this date.
The legislation does not prevent employees returning from parental leave from being considered for redundancy. Instead, it gives them priority over other candidates for any suitable alternative positions. If there are no suitable alternative roles and they are selected for redundancy, the priority protection does not apply and they could be made redundant. A failure to offer available suitable alternative roles to protected employees during the protected period could however result in an automatic unfair dismissal and creates a risk of discrimination claims.
These enhanced protections apply to employees on a contract of employment and are unlikely to apply to workers working under a genuine contract for services. In the context of agency workers, these protections will apply to temporary agency workers engaged under a contract of employment and not on a contract for services.
Following a period of parental leave, many parents will seek to return to work on a part-time or flexible basis, as they seek to balance childcare responsibilities with work commitments. The recently updated flexible working provisions set out in law give employees the legal right to request flexible working. This means they can request a change to the terms and conditions relating to their pattern of work either temporarily or permanently.
Generally, the right to make a flexible working request does not apply to agency workers whether they are engaged under a contract for services or a contract of employment. However, there is an exception which allows agency workers engaged under a contract of employment who are returning from a period of parental leave to make flexible working requests.
Additionally, as of September 2024 temporary agency workers (whether they are engaged under a contract for services or a contract of employment) will be able to make a request for a predictable pattern of working under The Workers Predictable Terms and Conditions Act 2023. They will be able to make this request to either the employment business engaging them or the hirer they are assigned to. These requests will be considered under the same legal provisions as flexible working requests. Therefore, an employee who makes both a flexible working request and a request under the Predictable Terms and Conditions Act 2023 in any 12-month period will have reached the limit of two flexible working requests per year.
We should therefore consider the additional protections given to employees on parental leave and the potential risks of claims for automatic unfair dismissal, parental leave related detriment and discrimination when considering redundancies. We should also bear these risks in mind when considering flexible working requests from parents returning from parental leave and should carefully consider and respond to flexible working requests.
Credit: REC
