Employers often believe that it is unlawful to make a woman redundant during maternity leave.
The recent case of Simpson v Endsleigh Insurance Services Ltd emphasises that, not only is this a misconception, but the right of a woman on maternity leave to suitable alternative vacancies is not automatic. It also proves that, sometimes, the correct reading of legislation is reassuringly obvious.
The case concerned Regulation 10 of the Maternity and Parental Leave Regulations 1999, which states 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). This gives the woman priority over other employees who are at risk of redundancy, even if they are better qualified for the job.
Regulation 10 states that this right to a vacancy depends on two conditions:
- the work to be done must be both suitable for the woman and appropriate for her to do in the circumstances; and
- 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”.
In this case, Endsleigh closed down several branches, including Mrs Simpson’s place of work in London, while she was on maternity leave. During the redundancy consultation process she 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 Mrs Simpson, but argued that it was less favourable to her in relation to its terms and conditions – eg, 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 Mrs Simpson had not been unfairly dismissed. She appealed.
Right to an alternative vacancy
Rather optimistically, Mrs Simpson 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. Unsurprisingly, 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.
While this decision provides welcome clarification for employers, they should still consider alternative vacancies in these circumstances very carefully – suitability and favourableness will not always be clear cut. In this case, the fact that the new role was in a different location was sufficient to render it “substantially less favourable”, but one can envisage situations in which this might not be the case (eg, if the new location were more easily commutable).
Employers should ensure that they have evidence of why they consider a new role is not “suitable and appropriate” and document their reasoning in case their decision is challenged. Ultimately, the stakes remain high – if an employer breaches Regulation 10 and then dismisses the employee on maternity leave, the dismissal will be automatically unfair.
Melissa Paz, solicitor, Withers LLP