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Background: Under Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regs), employers are required to offer any suitable vacancies to employees who are pregnant, on maternity leave or recently returned from maternity leave (or on adoption or shared parental leave) before making them redundant (the ‘protected period’).
If an employer fails to offer a suitable alternative role to an eligible employee during the protected period, the employee can claim automatic unfair dismissal (if dismissal takes place during that period). It can also amount to discrimination if the (principal) reason for not offering a suitable alternative vacancy was that the employee was pregant or on (or recently returned from) maternity leave.
Facts: The employee, Ms Hunter, was a team leader at the cruise line operator Carnival. She went on maternity leave in April 2020 at the start of the covid pandemic. Whilst she was on maternity leave, a redundancy exercise took place in which 21 team leader positions were being reduced to 16. Ms Hunter was one of five team leaders who were selected for redundancy based on scores she achieved through the redundancy selection process.
She was made redundant whilst still being on maternity leave and brought claims of (automatic) unfair dismissal and maternity discrimination. She argued that the remaining 16 team leader roles should have been offered to her as suitable alternative vacancies.
Tribunal decision
The Tribunal said the employee had been automatically unfairly dismissed. It said she should have been offered one of the 16 remaining team leader roles, as they met the definition of ‘suitable alternative vacancies’ under reg 10 of the MPL Regs.
Carnival appealed.
EAT decision
The EAT upheld the appeal and overturned the Tribunal’s decision. It said the remaining 16 team leader roles were not considered ‘vacancies’. They had already been filled following the redundancy selection process and therefore at the point employee was made redundant, there were no longer any vacancies available to offer her. This is different from a situation where two roles were merged – in this case the merged role is a new, different role and therefore a vacancy.
Implications: The upshot is that the protection under reg 10 of the MPL Regs does not apply when no actual vacancy exists and does not offer the enhanced right to override the selection process.
In other words, if employers are merely reducing the number of existing roles, there is no obligation to treat the remaining roles as suitable alternative vacancies. The duty to offer a role as a suitable alternative arises only when two roles are merged, creating a new ‘vacancy’, or if there are other genuine vacancies within the business that qualify as suitable alternatives for the redundant employee.
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