Redundancy Protection
Following the consultation carried out by the Department for Business, Energy and Industrial Strategy, the Government has recently published plans to extend redundancy protection to pregnant women and employees returning from maternity and adoption leave.
The proposed plans for reform would extend the existing right to suitable alternative employment beyond employees on maternity leave to include:
1.pregnant employees, from the moment the employee informs her employer that she is pregnant, whether orally or in writing;
2.individuals returning to work following maternity leave, for six months following the end of the leave;
3.individuals returning to work following adoption leave, for six months following the end of the leave.
No implementation date for the new redeployment rights has been announced and it could be that the new Prime Minister Boris Johnson and his administration will not necessarily decide to proceed with the plans hence what is the current position?
Maternity and Parental leave regulations 1999
Regulation 10 of the Maternity and Parental Leave Regulations 1999, provides that if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave, the employee is entitled to be offered (not just invited to apply for) a suitable available vacancy with her employer (or an associated employer) thus giving the woman priority over other employees who are at risk of redundancy, even if they are better qualified for the job.
However, Regulation 10 also goes on to state that this right to a vacancy depends on two conditions:
1.the work to be done must be both suitable for the woman and appropriate for her to do in the circumstances; and
2.the terms and conditions of her new job, including the capacity and place in which she is to be employed, must not be “substantially less favourable”.
Employment Tribunal
Thus, at present, the right of a woman on maternity leave to suitable alternative vacancies is not automatic right and the case of Simpson v Endsleigh Insurance Services Ltd 2010 gives further clarity on this.
Endsleigh had closed several branches, including Mrs Simpson’s (S) place of work in London, while she was on maternity leave. During the redundancy consultation process (S) was invited to apply for a position in Cheltenham. She failed to apply, claiming that the relevant correspondence had piled up at her home while she was recuperating elsewhere. In her claim, she argued that she should have been offered the new role in Cheltenham.
Endsleigh accepted that the new position was suitable for (S) but argued that it was less favourable to her in relation to its terms and conditions – e.g, she would have to relocate and do a seven-day shift. Therefore, it argued that there was no obligation to offer her the post.
The employment tribunal held that (S) had not been unfairly dismissed. She appealed and argued that, if there was a suitable post, this should have been offered to her even if the terms and conditions of the contract were less favourable.
Given the use of the word “and” between the two conditions in Regulation 10, the EAT decided that the two conditions on the right to an alternative vacancy should be read together, and both needed to be satisfied.
The EAT also confirmed that the question of the job’s suitability was one for the employer and there was no requirement that the employee be involved in this process. While the employer would have to consider what it knew about the employee’s personal circumstances and work experience, it was up to the employer, knowing what it did about the employee, to decide whether or not a vacancy was suitable.
Whilst this decision gives some clarification to employers, it is still prudent to consider alternative vacancies in these circumstances very carefully as suitability and less favourable treat will not always be clear cut.
For more information regarding maternity rights or adoption rights call our experts on 0333 240 7208.
