Clarifying Suitable Alternative Employment under Regulation 10 of the Maternity and Parental leave Regulations

The Employment Appeal Tribunal (EAT), in the case of case of Carnival Plc (ta Carnival UK) v Ms Laura Hunter, has clarified the application of Regulation 10 of the Maternity and Parental Leave Regulations 1999 (the Regulations) in redundancy situations.

The legal bit

Regulation 10 of the Maternity and Paternity Leave Regulations 1999 (Regulation 10) provides:

“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 with her employer or his successor, or an associated employer, under a new contact of employment ….. The new contract of employment must be such that- (a) the work to be done under it is a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and (b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract”.

Facts

Ms Hunter was one of 21 team leaders working at a contact centre for the Respondent. She went on maternity leave towards the beginning of April 2020. Due to the impact of the Covid pandemic, the Respondent undertook a redundancy exercise in late April 2020, whereby 21 team leaders would be reduced to 16; it was a simple reduction in the number of the same roles.

A redundancy process was followed. Objective scoring was undertaken to select those 5 that would be made redundant. Ms Hunter fell within this bottom 5 and was advised that she was selected for redundancy.

The Employment Tribunal claim (ET)

Ms Hunter brought a claim in the ET alleging that she should have been offered one of the 16 roles, in light of Regulation 10. The ET agreed, and she was successful in her claim for automatic unfair dismissal, as it was held by the ET that Regulation 10 had been breached. The rationale provided was that the redundancy process automatically meant that all 16 available positions were ‘vacant’ once the process started: all 21 team leaders were effectively redundant and were competing for one of these spots, and therefore Ms Hunter should have been slotted into one of these posts.

Employment Appeal Tribunal (EAT)

The Respondent submitted that the 16 available roles were never ‘vacant’. It further submitted that this was not created by, for example, merging or altering the roles in any way; and that the process should be to first ascertain who is made redundant, and then offer suitable alternative employment, if available.

The EAT disagreed with the ET, and agreed with the proposition put forward by the Respondent. It held that “there were no new roles created and Regulation 10 could not have been in play until after the redundancy process had been completed”…it is only after an employee’s position is redundant that the obligation under Regulation 10 arises.”

Conclusion

When undertaking a redundancy process it is vital to consider whether the roles which will be filled at the end of the process exist, or whether new roles will be created which employees will have to compete for.
In summary:

• If the roles remain unchanged and are simply reduced in number, Regulation 10 does not require offering a protected employee one of these roles. However, they must be offered a suitable alternative role, if selected.
• If new roles are being created (by merging roles or altering responsibilities) protected employee will be entitled to be offered one of those roles if it is suitable alternative employment.

The protection under the Regulations was extended in April this year. It is therefore important that any protected employees are identified early on in any redundancy process to properly consider whether anyone ought to be offered any vacancies arising from the restructuring. This will include employees who have already returned to work following any leave and who are still covered by the Regulations.