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Maternity, redundancy and suitable alternative employment
Enhanced maternity protection under reg. 10 of the Maternity and Parental Leave etc. Regulations 1999 does not apply when no actual vacancy exists.
Regulation 10 is engaged where an employee who is pregnant or on maternity leave, or who has recently returned from such leave (the protected period), would otherwise be made redundant. In that situation the employee is entitled to be offered alternative employment under a new contract of employment, which takes effect immediately on the ending of the employment under the previous contact. That entitlement effectively gives the employee priority over other employees who are at risk of redundancy. It arises only where there is a suitable alternative vacancy.
Up until April 2024 this protection lasted during the employee’s leave and ended at the end of the statutory maternity period. Failure to comply with reg. 10 means that the employee will have a claim for automatically unfair dismissal if the dismissal ends her ordinary maternity leave or additional maternity leave period.
Background
Ms Hunter, a team leader, worked for the cruise line operator Carnival. She went on maternity leave in April 2020. At the end of April 2020, Carnival notified its staff that it would be carrying out a wide-ranging redundancy exercise. Ms Hunter was placed at risk of redundancy together with the other 21 team leaders. She was subsequently confirmed as being one of six team leaders who were to be made redundant following a scoring exercise. She brought various tribunal claims, amongst them one for automatic unfair dismissal. She argued that the remaining 16 team leader roles should have been offered to her as suitable alternative vacancies during her maternity leave.
The tribunal held that Carnival had not met its reg. 10 obligation, as there were vacant roles that could have been suitable for Ms Hunter, but these were not properly offered to her. Carnival appealed.
EAT decision
The appeal was allowed.
The tribunal had misapplied the law. The 16 remaining team leader roles, already filled by the other affected employees before Ms Hunter’s employment ended, did not constitute ‘suitable alternative employment’ as defined by reg. 10. This regulation states that where there is a suitable vacancy, the employee must be offered it, but in this case, the EAT concluded that no such vacancy existed by the time of Ms Hunter’s redundancy (when her employment ended). The EAT stated that where ‘there is a conventional redundancy scenario in which there is simply a reduction in existing roles, reg. 10 does not override a valid selection process requiring, in effect, a woman eligible for reg. 10 protection but who scored lower than others to bump someone who would otherwise have retained his or her job following the reduction in roles by having scored higher’.
Comment
This case clarifies that reg. 10 does not apply to roles in a reorganisation that are reduced in number. By contrast, where new roles are created these may constitute a suitable alternative vacancy which must be offered to those who are pregnant or on maternity leave, or who have recently returned from such leave and who are selected for redundancy.
From April 2024, the scope of the protection was extended so that the protection now applies from the date the employee notifies the employer of her pregnancy and lasts for 18 months following the child’s expected week of birth or adoption.
The Employment Rights Bill gives the government the power to widen protections for pregnant employees and returning mothers.