Letter explaining protected period on redundancy

You must offer a suitable available vacancy on redundancy to those who are pregnant or are absent on, or recently returned from, maternity, adoption or shared parental leave.

Redundancy protected period

The redundancy “protected period” applies to those who are: (1) pregnant; (2) absent on maternity, adoption or shared parental leave; (3) recently returned from maternity or adoption leave - the protection here ends 18 months after the expected week of childbirth (or the date of the child’s birth if the employee notified you of that date during their maternity leave) or the date of the child’s adoption placement; and (4) recently returned from six or more consecutive weeks of shared parental leave - the protection here ends 18 months after the date of the child’s birth or adoption placement.

Right to suitable alternative vacancy

The protected period isn’t a right for an employee not to be selected for redundancy. A protected employee can still go into the pool for redundancy selection alongside other employees. What the legislation says is that where a protected employee is at risk of redundancy, they’re entitled to be offered a “suitable available vacancy”, with either their employer or an associated employer, under a new employment contract which takes effect immediately on the end of their employment under their previous contract. This entitlement to a suitable available vacancy is absolute and trumps the rights of other “at risk” employees, so the protected employee doesn’t need to apply for the vacancy and nor do they need to go through a competitive selection process. However, note that: (1) if there’s only one suitable available vacancy and more than one protected employee who’s interested in it, you’ll need to conduct a selection process to decide to whom to offer it; (2) if there’s more than one suitable available vacancy and only one protected employee, you don’t need to offer them a choice - you’ll fulfil your duty if you offer them just one vacancy; and (3) if there are no suitable available vacancies, the protected employee should then be considered for other alternative roles alongside other “at risk” employees as part of a fair redundancy process, i.e. with no priority status.

Is the available vacancy suitable?

The legislation provides that the new employment contract must be such that: (1) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for them to do in the circumstances; and (2) its provisions relating to role, place of work and other terms of employment are not substantially less favourable than the employee’s previous contract terms. If a vacancy isn’t suitable and appropriate, or if the contract’s terms are substantially less favourable, you don’t need to offer it in priority.

Letter content

Our Letter Explaining Protected Period on Redundancy is intended to follow our Second Redundancy Consultation Letter and it sets out the protected employee’s right to a suitable available vacancy and why they qualify for that right. It then goes on to provide that you’ll now search for such a vacancy.