Call us now on
0207 374 6546
mob: 07809 694 400 e: hina@partnerslaw.co.uk
Where an employee on ordinary or additional maternity leave is potentially faced with redundancy, she is entitled to be offered any suitable available vacancy with the employer, its successor or any associated employer in priority to other potentially redundant employees (regulation 10 Maternity an Parental Leave etc. Regulations).
The offer must be of a new contract taking effect immediately on the ending of her previous contract and be such that:
A common misconception is that this criteria is satisfied by allowing the employee on maternity to apply for a role will be enough. However, the law is clear that if a suitable alternative vacancy is available and is not offered, then any dismissal would likely be deemed automatically unfair.
This gives the employee on maternity leave priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination.
When is regulation 10 triggered?
Regulation 10 is only triggered once the employee has been selected for redundancy, it should not be factored into the selection process itself.
If an employer automatically selected a woman on maternity leave as one of the employees to be retained (effectively taking her out of the selection pool), it would run the risk of committing sex discrimination against any male employees in the pool. This is because the employer would arguably have gone further than reasonably necessary to avoid any disadvantage to the woman arising because she was on maternity leave.
What makes a suitable alternative vacancy?
When considering if there is a suitable alternative vacancy, the new role offered to the employee must be such that:
In Simpson v Endsleigh Insurance Services Ltd the Employment Appeal Tribunal (EAT) held that regulations 10(3)(a) and 10(3)(b) of the MPL Regulations were to be read together when deciding whether a vacancy was suitable for an employee. If the vacancy failed to satisfy both limbs of regulation 10(3) it would not be a suitable alternative.
In Simpson, the EAT upheld the tribunal's decision that the employer was not obliged to offer an employee who had worked in London a vacancy in Cheltenham. While the work was suitable and appropriate for her to do in the circumstances (under regulation 10(3)(a)), its location was substantially less favourable to her (under regulation 10(3)(b)) and it did not therefore amount to a suitable alternative vacancy.
This is ultimately a subjective criteria and would need to be considered on a case by case basis.
Redundancy criteria
If no suitable alternative vacancies are available, an employer should take care that the redundancy selection criteria it uses does not discriminate against employees who are pregnant or on maternity leave. For example, an employee's absences connected with pregnancy and maternity should not be included when scoring an employee on attendance.
Call us now on
Partners Employment Lawyers is not a firm of solicitors. Members of Partners Employment Lawyers are consultants at Excello Law Limited and legal services are provided by Excello Law Limited which is authorised and regulated by the Solicitors Regulation Authority under SRA number 652733.
Privacy policy | Cookie Policy | Complaints policy | Employment Tribunal pricing