Enhanced Family Friendly Legislation – what you need to know

10th January 2024


The Maternity Leave, Adoption Leave, Shared Parental Leave (Amendment) Regulations 2024 (the “Regulations”) is set to join the statute books and shall, from 6 April 2024, seek to protect employees, who are on these types of family-friendly leave, when a redundancy situation occurs. The Department of Business, Energy and Industrial Strategy opine these Regulations will benefit  employees who are new parents (or are expectant mothers) further protecting them from workplace discrimination and offering greater job security at a vulnerable time in their lives.

Current law and anticipated changes 

Given their protected status, employees who are on family leave (including maternity leave) must be prioritised in redundancy situations as employers are obliged to offer redeployment into suitable alternative employment before making their position redundant. This protective period, runs from the first day of the expected week of childbirth (or the actual date of birth is communicated to the employer) and, for female employees, continues for a period of up to 12 months therefore does not cover the period before or after birth.

So, how will the Regulations change current law? It is intended that the Regulations shall drive the mechanics of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 which shall extend the priority status for those employees who are pregnant or are returning to work from above mentioned types of leave. For the avoidance of doubt, this includes a period of pregnancy, which starts (or is contining), once the Regulations come into force on 6 April 2024 and indeed if an employee’s return-to-work falls on or after that date.

Pregnancy and Maternity Leave

If an employee becomes pregnant, either on or after the 6 April 2024, and assuming they notify their employer of the pregnancy they shall, during their pregnancy and for a period of 18 months (instead of the usual 12 months) from the child’s date of birth, be protected from redundancy and shall attain a priority status for redeployment opportunities over other employees facing redundancy. If the employer is not notified then the protective period shall last for a period of 18 months from the first day of the Expected Week of Childbirth. Although, keep in mind that, for employees who have miscarried, then the protective period shall only last for two weeks after the pregnancy ends.

Adoption Leave

For employees who are adopting, this protective period shall only apply from the date that the adopted child is placed with the employee provided the date of placement is  either on or after 6 April 2024.

Shared Parental Leave

This is a flexible form of leave allowing mothers and fathers to ‘mix-and-match’ their maternity and paternity leave. Obviously, this can complicate the way in which leave entitlements are calculated and the Regulations add an additional layer of complexity given that it impacts employees differently depending on how much leave they take.

Six or more consecutive weeks of leave

Provided that an employee has not taken maternity or adoption leave, the additional protective period will end 18 months from the date of a child’s birth or placement, if adopted.

Less than six consecutive weeks of leave

For these employees, they shall only be protected for the period of leave that they take.

Potential for discrimination?

Given the eligibility criteria for additional protection under this type of leave, what is the position for employees who are unable to take off that amount of time? The Regulations are silent on this but, for male employees, as paternity leave only lasts for two weeks they are excluded from benefitting from this additional protection. Moreover, the Regulations do not consider practical issues that fathers may encounter, for example, losing the mother in childbirth leaving him with sole parental responsibility. Would it be equitable to allow the additional period of protection to apply then? These issues may have to be resolved through case law or further legislation in due course.

Considerations for 2024 and beyond

Although the Regulations are not, at the time of writing, law, it does not detract from the fact that 2024 is still a time for employers to evaluate plans for future corporate restructures and how the Regulations will impact on business planning.  They will also need to consider how to deal with the scenario of priority redeployment of the above employees facing redundancy situations.

Bear in mind that these employees are not exempt from redundancy but are given priority status when it comes to allocation of redeployment opportunities but, if employers do not offer suitable alternative employment to a priority employee, it may lead to an automatic unfair dismissal (where employees do not need two years of service to be eligible to bring an unfair dismissal claim) being brought and any compensatory award made by an Employment Tribunal in respect of it is uncapped.

Clearly, getting this wrong can have adverse effects on your company and, should you require any legal advice with regard to any aspect of the above, then I encourage you to get in touch with SMB’s employment team.