Redundancy and Maternity Leave – a useful reminder
When facing a redundancy situation, is an employer obliged to offer a vacancy to an at risk employee who is on maternity leave during a restructuring exercise?
Where a woman is on maternity leave and a redundancy situation arises, the law states that a woman has a right to be offered a suitable alternative vacancy under the Maternity and Parental Leave Regulations 1999. Failure to do so will make any dismissal automatically unfair.
The EAT recently handed down judgment in a case (Sefton Borough Council v Wainwright) which considered what an employer should do with regard to offering suitable available vacancies to women on maternity leave at the time of a restructuring exercise. This serves as a particularly useful reminder of the current position as this will be similar for those who take up the new right to Shared Parental Leave.
Mrs Wainwright worked for Sefton Borough Council and during her maternity leave, her employer implemented a restructuring exercise. One of the proposals was to merge her role and one other role into a new senior role of Democratic Services Manager. Mrs Wainwright and the other role holder were advised that they were at risk of redundancy and both invited to apply for the new role.
The other employee was successful at interview. Mrs Wainwright was placed on the redeployment register – her employer did not offer her any of the other vacancies, nor did she express an interest. She was eventually dismissed in early 2013 and brought claims for breach of the Maternity and Parental Leave Regulations 1999, direct discrimination and automatically unfair dismissal.
What was the decision?
The EAT upheld the tribunal’s decision that Mrs Wainwright should have been offered the vacancy for the new senior role. It is an absolute right under Regulation 10 of the Maternity and Parental Leave Regulations 1999 to be offered a suitable vacancy. This right arose as soon as the decision had been made to delete Mrs Wainwright’s role, not when the restructuring exercise was complete. She should not have been required to take part in any selection process. The claim for automatic unfair dismissal therefore succeeded.
Interestingly, the EAT did comment that if there had been more than one vacancy, an employer would not have to offer all of the vacancies or even one particular vacancy – it just has to offer one vacancy as long as it is suitable.
The direct discrimination claim was sent back to the tribunal for consideration as to whether there was any evidence to support this. The EAT commented that a failure to comply with the regulations does not necessarily mean that this amounts to unfavourable treatment due to maternity.
What we can do for you?
This case is a useful reminder on the requirement to offer a vacancy to an employee on maternity leave when the employer becomes aware that the employee’s role is or may be redundant. This brings in interesting points as to when this duty is triggered and at what point does a possibility of redundancy become a firm proposal that a role will be put at risk of redundancy?
Employers also need to be aware of the risk of a discrimination claim when considering what vacancies to offer to an employee on maternity leave.
We can help guide you through these tricky situations and the pitfalls to try and avoid. Please call Karin Henson for further information.
Aeris Employment Law Ltd, Employment Solicitors, Solihull, West Midlands