There have recently been a number of developments to family-related rights and protections. This blog is to be the first in a series of three, reviewing these developments and their effects on employers and employees.

CIPD Report on Fertility in the Workplace

As workplace inclusion continues to be a top priority for numerous organisations, there is a growing awareness of the importance of addressing fertility issues in the workplace and implementing effective support mechanisms for employees facing such challenges. The CIPD has released a report detailing the results of surveys conducted among UK employers and employees regarding the support currently offered to individuals undergoing fertility challenges, investigations, or treatment.

Key findings from the CIPD survey:

  • Just over a quarter (27%) of employers have a policy in place concerning fertility treatment, while 40% don’t have a formal policy and don’t plan to introduce one. 
  • 46% of employees said they felt neither supported or unsupported at work while having fertility challenges. Just under a fifth said they felt quite or very unsupported.
  • Almost half of employees (47%) didn’t tell their manager or HR they were experiencing fertility challenges. 
  • Over half of organisations (56%) providing some kind of support had not their told employees about it. 
  • The top three most helpful forms of support reported by employees were paid time off to attend appointments; understanding from managers; and paid compassionate leave.
  • Almost one in five (19%) employees said they had considered leaving their job because of their experience at work in relation to fertility challenges, investigation or treatment.

To support employers in developing an effective workplace framework of support, the CIPD published new guidance structured around five principles of good practice.

  1. Raise awareness across the organisation about the need for fertility challenges, investigations or treatment to be recognised as an important workplace wellbeing issue.
  2. Create an open, inclusive and supportive culture.
  3. Develop an organisational framework to support employees, including specific policy provision.
  4. Manage absence and leave with compassion and flexibility, considering the potential impacts on both partners.
  5. Equip line managers to support people with empathy and understanding. 

The CIPD urges organisations to provide real support, such as granting paid leave for appointments, offering flexible work arrangements, and training managers to effectively assist employees with sensitive matters, fostering supportive environments where individuals feel comfortable seeking help. The guidance equips employers with insights into best practices and a blueprint for establishing their own policies. Whilst this guidance is not legally binding, for those who implement the guidance, there is likely to be increased employee loyalty resulting in greater employee retention.

Redundancy Protection

From April 6, 2024, employees who are pregnant or returning from maternity, adoption, or shared parental leave will receive priority status for redeployment opportunities in redundancy situations. The Maternity Leave, Adoption Leave, and Shared Parental Leave (Amendment) Regulations 2024, extend the protection afforded by the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. Currently, employees who have notified their employer that they are pregnant or have commenced their adoption leave, and when they are on maternity, shared parental, or adoption leave, have the right to be offered a suitable alternative role during a redundancy situation, meaning that they are given priority over other at-risk employees when considering possible redeployment opportunities.

Adoption leave can be deemed to have started:

  • On the date the child starts living with the employee or up to 14 days before the expected placement date (UK adoptions).
  • When an employee has been matched with a child to be placed with them by a UK adoption agency.
  • When the child arrives in the UK or within 28 days of this date (overseas adoptions).
  • The day the child’s born or the day after (parents in surrogacy arrangements).

With the extension of the regulations, this protection and requirement to offer alternative roles will apply for up to 18 months after the child’s birth or adoption. In essence, the Act aims to enhance job security during pregnancy and family leave, obligating fair treatment and alternative job exploration before redundancies occur.

This means that, for maternity leave, the protected period will commence when the employee notifies the employer of their pregnancy and will end 18 months after the child’s birth. Similarly, protection for adoption leave will increase to 18 months after the date of the adoption leave was deemed to have started. For shared parental leave, where an employee is taking 6 or more consecutive weeks of shared parental leave, the protected period is 18 months after the date of the child’s birth or adoption. If the shared parental leave taken is less than 6 weeks, the protection will only apply during the period of shared parental leave.

For employees who have suffered a miscarriage, the protected period will start when the employee notifies the employer of pregnancy and will end two weeks after the end of the pregnancy for pregnancies terminating prior to 24 weeks. For birth mothers who miscarry after 24 weeks, they are entitled to take the full statutory period of maternity and birth fathers can get up to 2 weeks of paternity pay. If shared parental leave has been booked with your employer before the baby dies, both parents are entitled to it. However, if the employer hasn’t been given notice, then the employees will no longer be eligible.

The protection kicks in when it comes to the allocation of alternative roles, giving employees priority for redeployment opportunities. As a consequence, employers must now implement systems for identifying any potential suitable vacancies across their entire organisation.

It is important to note that these protections do not constitute a ban on making employees redundant during the special protected period. In a genuine redundancy situation, and where there is no suitable alternative work available for those with priority status, then they can lawfully be made redundant, provided that pregnancy / parental leave is not the reason for redundancy, the redundancy is genuine, and the employer has followed the correct redundancy procedures and has considered any redeployment.

From a policy standpoint, there are clearly compelling reasons to safeguard new and expecting parents from discrimination and spare them from competing for redeployment opportunities during a vulnerable period. However, there may be instances where these rules feel unjust to managers and employees who are not on leave, particularly if it leads to losing a high-performing employee in favour of one with priority status. This must be handled with care, and employers should ensure that managers understand the rules and receive training to enhance their skills and confidence in managing such situations.

Employers contemplating or planning restructuring in 2024 must carefully consider the implications of the new protections and any potential issues that may arise. Failure to offer a suitable alternative position to a priority employee would result in an automatic unfair dismissal claim, leading to an uncapped compensatory award without the requirement of two years’ qualifying service. In certain cases, there could also be a discrimination claim. Given the substantial penalties involved, this represents a significant legal change, necessitating employers’ attention.

Should you have any queries in relation to the developments and their potential effect on your business and/or employment rights, or indeed any other employment law related query, please contact Linky Trott or any other member of our Employment team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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