Employers: Redundancy during SPL
Redundancy situations can be difficult for employers to handle fairly, and special care must be taken if any of your potentially-redundant employees are taking or planning to take shared parental leave (or any other period of family-related leave). It can be too easy to treat employees on SPL as “out of sight and out of mind”, or to make negative assumptions about their future value to the business.
This factsheet summarises the legal protections available to employees taking SPL and the steps you should take to comply with the law. There are two main points to bear in mind: you must not treat employees less favourably because they have taken SPL, and you must offer a suitable alternative vacancy (if one exists) to anyone on SPL who would otherwise be made redundant.
What are employees’ rights in relation to SPL during redundancy situations?
Employees have the right not to be disadvantaged or dismissed for a reason related to SPL during redundancy situations as well as at other times.
As an employer going through a redundancy process, you should not select an employee for redundancy over other employees in similar positions where the reason or principal reason for the selection is SPL-related. Dismissing an employee in those circumstances would be automatically unfair.
You may think an employee wishes to take SPL in the future. It is unlawful to select an employee for redundancy with that as the reason or principal reason motivating the selection. In a restructuring process, it would also be unlawful to penalise a person’s score for the purposes of allocating them a role in the new structure, simply because they took time off on SPL in the past.
Do employees on SPL get preferential treatment during redundancy rounds?
Just as for employees on maternity leave or adoption leave, the law requires employers to give preferential treatment to those on a period of SPL, when it comes to suitable alternative work. This is because the law recognises that those absent from work on such leave would be at a disadvantage during redundancy processes if required to compete alongside other employees for jobs.
If during a period in which an employee is on SPL it is not practicable by reason of redundancy for you to continue to employ them under their existing contract of employment, you must offer them any suitable alternative role that is available.
What does “suitable alternative vacancy” mean?
For the alternative employment to amount to a suitable alternative vacancy, the work in the new role must be of a kind which is both suitable for them and appropriate for them to do in the circumstances. Also, the new role’s terms and conditions, such as location, status, and pay, can’t be substantially less favourable in comparison to their previous role, otherwise the new role won’t count as a suitable alternative role. This is all judged on a case by case basis. For example, if they have to travel much further to a different location, the role may not be suitable for them.
There is a ‘vacancy’ as soon as there is an unfilled post that you propose to fill, and it ceases to be practicable for the employee to return to their old job by reason of redundancy once it has been deleted. It does not matter what stage you are at in the redundancy consultation, or if the employee is not proposing to return from their SPL leave until sometime in the future, or if you think someone else might do a better job in that role; once these criteria are met, the employee is entitled to be offered the role ahead of any other candidates not on SPL or maternity or adoption leave.
The vacancy might be with a successor employer or an associated employer.
What about if more than one employee is absent on family-related leave?
Conceivably a number of candidates on SPL, maternity or adoption leave may exist for whom one particular vacancy is suitable. In such a case you may legitimately require those candidates to compete for the role. Each candidate on leave would arguably have an equal right to the new role, and you must find a fair and unbiased way to identify who is appointed, such as through an interview or scoring process. However you should make sure that your arrangements do not treat any woman on maternity leave unfavourably for a reason connected with pregnancy and childbirth (requiring her to attend a competitive interview shortly after giving birth, for example).
Victoria Webb, Old Square Chambers
SPLash (SPL advice on sharing) has been created by an alliance of organisations with expertise in employment law and issues affecting parents at work. Its purpose is the sharing of knowledge and best practice on shared parental leave.