Christina Simpson looks in detail at the special protection that the law offers to employees on maternity leave
Although employers have to offer suitable alternative employment if it is available in a normal redundancy situation, they must offer it automatically to employees on maternity leave.
What protection does the law offer?
Regulations 10(1) and 10(2) of the Maternity and Parental Leave Regulations 1999 state that if it is not practicable for an employer to continue to employ someone on maternity leave under her existing contract because of redundancy, they must offer her another job that is suitable and appropriate for her to do.
The terms and conditions of the alternative job must not be substantially less favourable than her original terms and it must be available for her to start straight after the end of her original contract.
If such a job exists, the employer has to offer it to an employee on maternity leave, even if there are other staff who are also going to be made redundant and there is another employee who may be better suited to the role.
When does the protection under Regulation 10 kick in?
Until recently, it has not been entirely clear when the automatic right arises for an employee, who is on maternity leave, to be offered suitable alternative employment. Typically, employers have argued that Regulation 10 only applies once the employee has actually been selected for redundancy. In other words, once a scoring exercise has established that she has not secured a new post, or when a restructuring exercise has identified that her job is definitely going.
However, the Employment Appeal Tribunal (EAT) held, in Sefton Borough Council -v- Wainwright (weekly LELR 401), that this approach is wrong. The council decided to combine two roles into one during a restructuring exercise that took place during Ms Wainwright’s maternity leave. The council then invited both Ms Wainwright and the other affected employee to take part in an interview. However, she was unsuccessful and was subsequently dismissed on the grounds of redundancy.
Ms Wainwright brought tribunal proceedings that included a claim for breach of Regulation 10 and automatically unfair dismissal. The council argued that the obligation to offer suitable alternative employment under Regulation 10 only arose once the process of reorganisation had been completed and, in Ms Wainwright’s case, when a decision had been made not to slot her into the combined role. Only at that point was she entitled to be offered suitable alternative employment in preference to other staff.
The tribunal, and later the EAT, disagreed with the council and found that there had been a breach of Regulation 10. It also found that Ms Wainwright had been automatically unfairly dismissed. Both tribunals confirmed that the duty to offer suitable alternative employment under Regulation 10 arises when an employer becomes aware that the role of an employee, who is on maternity leave, is redundant or potentially redundant. To accept that it does not arise until a selection or restructuring process is complete would undermine the protection Regulation 10 provides.
The effect of this decision is that, from the date the woman is told she is at risk of redundancy up to the point she is dismissed or returns from maternity leave (whichever is sooner), an employee who is on maternity leave has the right to automatically be offered a suitable alternative job if it is available. She should not be placed in the pool for selection or scored against set criteria.
However, the findings in this case are not all good news. The EAT also made the point that if the council had offered Ms Wainwright a job that was suitable, even if it was not the combined role, this might have been enough to satisfy Regulation 10. As a result, it is currently unclear what the position is if an employer offers only one of a number of potentially suitable jobs, particularly if that job is not the employee’s preferred choice. It is likely that there will be further cases on this point in the future.
Although it is now clear when Regulation 10 applies, it cannot be assumed that an employee, who is redundant while on maternity leave, will automatically be offered any job that she identifies. The job in question still has to satisfy the test of being both “suitable” and “appropriate”.
How should the “suitable alternative employment” test be applied?
In the case of Simpson -v- Endsleigh Insurance Services Ltd, the EAT confirmed that both stages of the test must be met. In this case, Ms Simpson’s original job in London became redundant while she was on maternity leave. There were potentially suitable jobs available in Cheltenham, which she was invited to apply for. She was told that one would be automatically offered if she did.
Ms Simpson did not express an interest. Following her dismissal, she lodged a tribunal and then an EAT claim, arguing that, because the role in Cheltenham was suitable, it should have automatically been offered to her. She claimed that the parties should only look at the “appropriate” stage of the test after the offer has been made.
The EAT did not accept that argument. It found that both limbs of the test had to be satisfied before employees were entitled to be offered alternative employment under Regulation 10. The tribunal was therefore entitled to find that the Cheltenham job was neither suitable nor appropriate. The fact that it was less favourable to Ms Simpson in terms of work location was an important factor in that decision.
This conclusion means that, if an alternative job is suitable in all other aspects apart from the fact it is in a location which requires further or awkward travel for the affected employee, an employer may be able to argue that the Regulation 10 right to be offered that job does not apply. However, if the employee can show that they are willing and able to move or take on the additional travel, this defence will be significantly weakened.
Bearing in mind the tribunal’s findings in Simpson, employees who are made redundant while on maternity leave should make it clear to their employer that they are interested in particular jobs and, if appropriate, that they are willing to take on additional travel.
The Simpson case also set an important precedent about the way in which the suitability of a role should be assessed and whose perspective it should be considered from. The EAT agreed that it should be from the employer’s point of view “knowing what it does about the employee”.
Clearly this shifts the balance in favour of the employer, making it easier to argue that a job is not suitable even if the employee is adamant that it is.
There were, however, some positive points to come out of the Simpson case for claimants.
When commenting on whether a more senior role could be a suitable alternative, the EAT suggested that it would not be appropriate for an employer to rely on an assessment and interview. Applying this principle to the Regulation 10 obligation generally, it means that if a job is suitable or, arguably even if it is only potentially suitable, it should be automatically offered without any requirement for an application or interview.
Are there circumstances when Regulation 10 does not apply?
The right to what is in effect more favourable treatment under Regulation 10 only applies to alternative jobs that are suitable. If a particular job does not satisfy the Regulation 10 suitability test, then the employer is entitled to place the affected employee in a pool for selection and apply a set of fair criteria to assess if they should be offered the post.
When applying those criteria, the employer does not have to automatically increase the scores of an employee who is on maternity leave, nor do they have to give set scores. In Eversheds Legal Services -v- De Belin (weekly LELR 220), for instance, the EAT found that there was no requirement for positive discrimination in favour of an employee on maternity leave as this went beyond what was reasonably necessary to alleviate any disadvantage she may suffer as a result of her absence.
In that case, the tribunal said that it was not proportionate for the employer to award maximum scores to Ms De Belin because she had been on maternity leave during the period that was to be reviewed. Instead, they could have measured the affected employees over a period in which comparable data was available.
What does this mean in practice?
It is clear from the case law that employees, who are at risk of redundancy and are on maternity leave, are entitled to be automatically offered suitable alternative employment, without having to apply for it or attend an interview. This right applies from the point at which they are identified as being at risk of redundancy or when a restructure identifies that their job is potentially surplus to requirements.
However, depending on the circumstances, it may prove difficult for an employee to argue a job is suitable if the employer does not agree. If it is not suitable, employers only have to make proportionate adjustments to selection processes or criteria.