The Topic
Under Regulation 10 of the Maternity and Paternity Leave Regulations 1999, a woman on maternity leave whose job is being made redundant, is entitled to be offered a suitable alternative vacancy where it is available (before the end of her employment under her existing contract) with her employer or an associated employee and any suitable available vacancy must be appropriate for her to do and terms not being substantially worse than her previous job. Further, Regulation 23 of the Paternity and Adoption Leave Regulations 2002 and Regulation 39 of the Shared Parental Leave Regulations 2014 currently provide the same protections to those on adoption leave or shared parental leave respectively.
The question is whether the above protection extends to a situation where the employee on maternity leave falls within a pool of employees doing a similar job and the employer is looking to reduce the numbers thus the roles are not disappearing completely.
The Answer
The Employment Appeal Tribunal (EAT) has addressed the above question in the case of Hunter v Carnival plc (2), where the employer carried out a restructuring redundancy process resulting 21 team leader posts reduced to 16 whilst Ms Hunter (H), a team leader, was on maternity leave, resulting in her being made redundant. (H) brought claims of unfair dismissal and maternity discrimination.
The employment tribunal decided that the remaining 16 team leader roles were suitable alternative vacancies falling within Regulation 10 and should have kept one of these vacancy for (H). The matter went on appeal to Employment Appeal Tribunal (EAT).
The EAT considered wording in Regulation 10 namely, “Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contact) alternative employment”, but found on the facts of this case that the tribunal had made error in concluding that the remaining 16 team leader posts were a ‘vacancy ’by the time (H) had been selected for redundancy, as there were no new vacancies because the remaining 16 roles were not vacant.
The EAT distinguished the position where two roles are being amalgamated into one different role because that would be a new vacancy in line with earlier case law such as Sefton Borough Council v Wainwright [2014], where the claimant was on maternity leave when her role and that of a male colleague were removed and replaced with a combined role new post. The Council went through a selection process for the new combined role and decided that the male colleague was better qualified for the position. When the claimant was dismissed as redundant she brought a claim arguing that she had been unfairly dismissed as she should have been offered the combined new role in preference to her male colleague under Regulation 10 and the EAT agreed with this, however the EAT emphasised that where there was a breach of Regulation 10, that does not automatically mean that there is a case of direct discrimination under Section 18 Equality Act 2010 (discrimination on grounds of maternity or pregnancy) as a tribunal should consider what was the “reason why” Ms Wainwright was treated in this way before deciding that there was a breach of section 18.
What You Need To Do
Where there is a reduction of numbers but no new posts then a fair selection process must be followed but an employee on maternity leave that falls within the pool of employees at risk of redundancy does not get preference in this process as in the Eversheds Legal Services Ltd v de Belin [2011] IRLR 448 EAT, the EAT held that a male employee was discriminated against on the grounds of sex when he was selected for redundancy after a colleague on maternity leave was automatically given the highest possible score in respect of one of the selection criteria. Thus, a fair process in line with current statutory and regulatory provisions must be followed by employers to avoid substantial damages claim on a sex discrimination claim.
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