In this insight, we outline the current framework of redundancy protection, why the law may be changing and the resulting implications for employers. We also highlight some of the other family rights which are proposed in the ‘Good Jobs’ Bill.
This article is part of our series on the ‘Good Jobs’ Employment Rights Bill and we encourage all stakeholders to respond to the current consultation which closes on 30 September 2024, and to share views on how the potential legislative changes may impact their organisations.
Current position
Under the Sex Discrimination (Northern Ireland) Order 1976 there is a “protected period” during which employees who are pregnant or who have recently given birth are protected from discrimination. The protected period runs from the start of a woman’s pregnancy until she returns to work from ordinary or additional maternity leave (if she is entitled to either form of leave); or two weeks after the end of her pregnancy (if she is not entitled to maternity leave). Following the protected period, it is still unlawful to treat an employee less favourably because of her pregnancy or maternity status.
Employees on maternity, adoption or shared parental leave have additional protections from the Employment Rights (Northern Ireland) Order 1996. In a redundancy situation, these employees have the right to be offered a suitable alternative vacancy (if one is available) before being made redundant. This suitable alternative vacancy must be appropriate in the circumstances, with the terms and conditions of the role, “not substantially less favourable” than the employee’s previous role.
Currently, this protection only applies to eligible employees for the duration of the maternity, adoption or parental leave, and such employees have priority status to access any redeployment opportunities in this time. However, the current framework does not provide for the same level of protection from redundancy after the period of relevant family leave has ended.
Proposed changes
As part of the current Employment Rights Bill consultation, changes are proposed to extend this enhanced protection to:
- pregnant employees from the point the employer is informed of the pregnancy; and
- employees returning from maternity/adoption leave (and at least six weeks shared parental leave) with protection lasting for 18 months from the date of birth/adoption.
Overview of proposed enhanced redundancy protection periods
| Length of protection | |
| Pregnant employee who takes maternity leave |
Start: When the employer has been notified of the pregnancy. End: 18 months from the child’s date of birth. |
| Employee taking adoption leave |
Start: Beginning of adoption leave. End: 18 months from date of placement. (Includes any time spent in this period on adoption leave or other statutory leave) |
| Employee taking shared parental leave |
Note: If the employee has also taken maternity or adoption leave, the above periods apply instead.
End: If less than six weeks of SPL is taken, at the end of SPL. If six or more continuous weeks of SPL is taken, 18 months from child’s date of birth (inclusive of any time spent on statutory leave). |
A similar enhancement to redundancy protection was introduced in GB in April 2024, which we wrote about here.
Why are such changes proposed?
The Department for the Economy has considered a range of evidence on the employment experience of pregnant women and those taking family leave following their return to the workplace. According to the consultation, in an investigation carried out by the Equality Commission for Northern Ireland, 50% of women categorised their career opportunities as worse than before their pregnancy. Over a third of those surveyed believed they had been treated unfairly or were at a disadvantage because of their pregnancy or by taking maternity leave. The Department contends that such evidence corresponds with other data which highlights the acute potential for discrimination throughout a parent’s employment.
The Department therefore proposes enhancing protections in this respect to, “provide a clear set of obligations and responsibilities for employers to follow during an employee’s pregnancy or their return from relevant leave”.
It is important to note that, for the purpose of these proposed changes, a period of shared parental leave (SPL) will work differently to that of maternity and adoption leave. Eligible working parents returning from SPL may also avail of the enhanced redundancy protection but only after having taken a minimum of 6 weeks SPL. The Department has outlined that it would be disproportionate to the threat of discrimination to allow a parent 18 months of redundancy protection when returning from, say, only one week of SPL, compared to a parent returning from a much longer period of maternity or adoption leave.
Practical implications for employers
- Redundancy protection only relates to redeployment - It is important to note that reference to “redundancy protection” does not mean that there would be a blanket ban on making eligible employees redundant when within the protected period. All employees could still be selected for redundancy. However, a certain number would have priority status when considering suitable alternative vacancies.
- An increase in the number of employees with priority status in redundancy situations - New and expectant mothers could avail of a protected period of approximately two years if they, for example; inform their employer of their pregnancy after 12 weeks of pregnancy, take one year of maternity leave and obtain a further six months of redundancy protection upon their return to employment. Fathers taking six weeks of SPL or more would also have redundancy protection for 18 months.
As a result, those with priority status in an organisation at any one time would very likely increase and employers may need to undertake additional selection processes between all individuals with priority status, being careful not to discriminate with selection matrices and subsequent redundancy decisions.
- Potential increase in uptake of SPL – In the event of business difficulties it would not be surprising to see more employees avail of SPL to obtain the additional redundancy protections.
- Workplace relations issues – It is foreseeable that those returning from one year of maternity leave could feel that they are at a potentially greater risk of discrimination than employees who took a relatively short period of SPL. In these instances, employees may feel that their redundancy protection has been unfairly diluted.
Employers would have to manage these issues carefully and ensure managers are cognisant of any new statutory framework with associated training being provided to effectively navigate these issues.
Other proposed enhancements to family rights
In recognition of the importance of promoting a work/life balance and allowing flexibility and support for working families, the Department has proposed a number of other ‘family friendly’ enhancements. These largely mirror recently expanded family rights introduced in GB and include:
| Flexible working |
A proposal for employees to have the right to make such requests from the first day of employment (rather than after 26 weeks of employment) and potentially make two requests in a 12-month period (up from one at present). Similar rights were introduced in GB in April 2024 which we wrote about here and we have seen a number of employers with employees in both jurisdictions adopt the flexible working changes implemented in GB for their NI employees as a matter of best practice. |
| Carer’s leave |
A proposed right for eligible employees to take up to one week of unpaid leave per year to provide care for a family member or other dependant who has a long term or otherwise significant care need. In short, this relates to any person that reasonably relies on an employee to provide or arrange care and includes a spouse, civil partner, child, parent or someone living in the same household as the employee (excluding lodgers or tenants). The right to carer’s leave was introduced in GB in April 2024, which we wrote about here. In the event corresponding legislation is introduced in NI, employers will need to consider updates to policies but also “self-certification” arrangements and record-keeping to track the use of this leave. Views are also sought as to whether this should be a paid leave, which is not the position in GB. |
| Neonatal leave |
A proposed right for eligible working parents of newborn babies who enter neonatal care within 28 days of birth and who receive at least seven days’ continuous neonatal care to receive one week of leave and/or pay for each week the child remains in neonatal care up to a maximum of 12 weeks. This is proposed to be a right from the first day of employment. |
| Paternity Leave |
A proposal that fathers/partners will be able to take paternity leave at any point in the first year after birth/adoption and will be able to split it into two blocks of one week or a single block of two weeks. Under the current rules, paternity leave must be taken in a single block within the first eight weeks. This is proposed as a right from the first day of employment. |
Given the potential implications of these proposals for employers, we encourage businesses to engage in the consultation process, either through our survey or by responding directly to the Department’s consultation to give a voice to businesses in this important process.
To respond to Lewis Silkin’s survey, or to register to attend the in-person event please visit here.
Further information on the Good Jobs consultation is available on our NI Employment Law Reform Impact Hub and our Consultation Dashboard breaks down the proposals by theme, explaining what each proposed change involves and its potential impact for employers.