Chapter 1 Getting closer – Employment Rights Bill and neonatal care leave
The Employment Rights Bill got a step closer to Royal Assent this month as it completed its committee stage. After its third reading, it will go to the House of Lords.
The Bill hasn’t changed significantly since publication, but the government has introduced a power to limit unfair dismissal compensation during the initial period of employment. It’s also amended the Bill to increase the time limits for most tribunal claims from three to six months. For further detail about what’s changed and other important developments for 2025, you can listen to our recent webinar.
In late January, the government confirmed that neonatal care leave and pay will be available for babies born on or after 6 April 2025. It published the draft Neonatal Care Leave Regulations, providing the framework for the new right.
Parents (including adoptive and surrogate parents) will be eligible for a week’s leave for every week that their baby requires neonatal care. The neonatal care must start within 28 days of a child’s birth and last at least a week. Notice requirements depend on whether a parent wants to take leave while a child is receiving care or later. Leave itself is a day one right but statutory neonatal care pay depends on having 26 weeks’ service and minimum average earnings. For more detail about the new right and how to prepare, read our article.
Next steps
- Continue to monitor the Employment Rights Bill’s progress, especially consultations on the detail.
- Review existing neonatal care leave policies or implement new ones before 6 April 2025.
- Make managers aware of the new right to neonatal care leave and the fact that employees do not have to give much notice before taking leave.
Chapter 2 Maternity protection and redundancies – the meaning of “vacancy”
Women on maternity leave who are at risk of redundancy are entitled to be offered an available suitable alternative vacancy or a dismissal will be automatically unfair. The same protection applies to parents on adoption or shared parental leave, and to employees who are pregnant or who have recently returned to work after a period of family leave. As the group of employees with enhanced redundancy protection expands, it’s important for employers to understand what amounts to a vacancy. A recent EAT decision provides useful guidance.
While an employee holding a team leader role was on maternity leave, her employer decided to reduce the overall number of those roles from 21 to 16. She was selected for redundancy after a scoring exercise. She claimed that her dismissal was automatically unfair because she had not been offered one of the remaining 16 roles as a suitable alternative vacancy.
Although her claim initially succeeded, the EAT overturned the tribunal’s decision. This was a situation in which the total number of roles was reducing, not one where existing roles ceased to exist and were replaced by new ones. An existing role is not a “vacancy”. In a conventional redundancy situation where the overall number of roles is reducing, the right to be offered a suitable alternative vacancy does not require an employer to slot an employee on maternity leave into a remaining role on a preferential basis.
Next steps
- The decision reflects how most employers already approach the preferential right to redeployment.
- It’s nonetheless helpful confirmation that a “standard” redundancy situation does not require employers to bump higher scoring employees to make way for lower-scoring employees with redeployment rights.
- This may change under the Employment Rights Bill, which will only permit employers to dismiss employees who are pregnant, or who are on or who have recently returned from family leave, in as yet undefined specific circumstances.
Chapter 3 I object! Implications for TUPE transfers
It’s uncommon for an employee to object to a TUPE transfer, because that normally results in their employment terminating by law. There’s no dismissal, so no right to notice pay or to claim unfair dismissal. However, the decision in London United Busways Ltd v De Marchi clarifies that this will not always be the case. When an employee objected to a transfer in response to a substantial change to his working conditions that would take effect after the transfer, he succeeded with an unfair dismissal claim against the transferor.
London United Busways lost a bus route to a competitor on a retendering. Both parties accepted that TUPE applied and that employees assigned to the route would transfer under TUPE. However, the transferee would run the route from a different garage some distance from the current one. The employee objected to the transfer because of the additional travelling time involved.
The EAT found that although TUPE says that an employee who objects to a transfer is not treated “for any purpose” as dismissed by the transferor, that principle doesn’t apply if the employee is objecting to a future substantial change to their working conditions. In that case, their employment doesn’t transfer to the transferee, they are treated as dismissed by the transferor and they can bring an unfair dismissal claim against it.
Next steps
- We knew that it was possible for an employee to resign before a TUPE transfer and claim unfair dismissal against the transferor.
- The decision clarifies that the same principle applies if the employee objects in response to a substantial change in working conditions but does not resign.
- Transferees should negotiate an indemnity to cover them against liability for such claims.
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