What should an employer consider before making an employee on maternity leave redundant?

As well as under the Equality Act, there are less well known protections for women on maternity leave and individuals on parental leave which are found in the Maternity and Parental Leave etc. Regulations 1999 (MAPLE).

One such protection is Regulation 10 of MAPLE, which is a rare example of permitted positive discrimination. It requires an employer to offer a suitable alternative vacancy before making an employee on maternity leave redundant. This gives employees on maternity leave priority over other employees who are also at risk of redundancy.

What is a suitable alternative vacancy?

This was explored in the case of Hunter v Carnival PLC.  The Claimant had worked at the Respondent for about 13 years and was one of 21 team leaders. During the pandemic, the Respondent carried out a wide-ranging redundancy exercise across the Company and planned to reduce the number of team leaders from 21 to 16. As a result, the Claimant, alongside 4 other team leaders, was placed at risk of redundancy based on selection scores.

The Claimant was dismissed and made a claim to the Employment Tribunal (ET) for unfair dismissal and discrimination on the basis of maternity leave. The Claimant also disputed the scoring system that had been adopted.

The ET upheld the Claimant’s claims and ruled that the 16 roles remaining amounted to suitable vacancies within the meaning of Regulation 10. Therefore, the Claimant should have been prioritised and retained in one of the roles.

The Employment Appeal Tribunal (EAT) overturned this decision, finding that the ET had misapplied the law. It found that by the time the Claimant had been selected for dismissal, the 16 roles had already been filled and it did not constitute ‘suitable alternative employment’ under the regulation as no vacancy existed.

The EAT distinguished the position where two roles are being amalgamated into one different role as this would be deemed to be a new vacancy. It also made clear that in a conventional redundancy scenario, Regulation 10 does not act as an override if there are better candidates at face value, which applied in this case due to the scoring system adopted by the Respondent.

Comment

The protection of Regulation 10 is a valuable protection for those on Maternity Leave, but it is based on there being roles available for the employee on leave to be offered. That is different to there being a reduction in roles and the employees being selected for dismissal are identified after a thorough and fair selection process based on a balanced review of skill sets.

If you require any further information on the above please get in contact with a member of the Employment Team.