EAT clarifies scope of maternity leave redundancy protections
The Employment Appeal Tribunal (EAT) ruled that enhanced redundancy protection under Regulation 10 does not apply where no actual vacancy exists.
Background
Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 provides redundancy protection to employees who are pregnant or who are on maternity leave, adoption or shared parental leave. This regulation mandates that if a redundancy situation arises during maternity leave, the protected employee must be given priority in the allocation of suitable alternative employment.
Prior to April 2024, this protection lasted during the employee's leave and ended on their return to work. From April 2024, the scope of the protection was extended so that the protection now applies from the date the employee notifies the employer of her pregnancy, and lasts for 18 months following the child's expected week of birth or adoption.
If an employer does not comply with the requirement to offer an eligible employee suitable alternative employment during the protected period, the employee will have a claim for automatically unfair dismissal if the dismissal ends the employee's ordinary maternity leave or additional maternity leave period.
Facts of the case
In the case of Hunter v Carnival plc, the claimant, Ms. Hunter, was a team leader who worked for a cruise line operator. She went on maternity leave in April 2020, at a time when the COVID-19 pandemic was significantly affecting her employer's business operations. At the end of April 2020, her employer notified its staff that it would be carrying out a wide-ranging redundancy exercise. The claimant was placed at risk of redundancy together with the other team leaders. The claimant was subsequently confirmed as being one of six team leaders who were to be made redundant following a scoring exercise. She brought claims of automatic unfair dismissal, unfair dismissal and maternity discrimination. A key thrust of her argument was that the remaining 16 team leader roles should have been offered to her as suitable alternative vacancies during her maternity leave.
The Employment Tribunal upheld the claimant's automatic and ordinary unfair dismissal claims. In respect of the automatic unfair dismissal claim, it found that the 16 remaining team leader roles met the definition of “suitable alternative vacancies”, which should have been offered to her during maternity leave. It reached this finding notwithstanding the fact that the redundancy exercise concerned a reduction in the total number of individuals holding the same roles, rather than a scenario where there was an amalgamation of roles resulting in a newly created position. It nevertheless
The respondent appealed to the EAT on a number of grounds. For our purposes, the interesting ground of appeal concerns the automatic unfair dismissal claim, and whether there was in fact a suitable alternative vacancy available at all.
EAT decision
The EAT allowed the appeal and has remitted the claim to the Tribunal for a new hearing. In its decision, the EAT confirmed that in order for the regulation 10 protection to apply, an actual vacancy must exist. In this case, the remaining 16 roles were already filled by other employees, meaning there was no vacancy for the claimant to be “slotted into.” It was instead a question of which five posts would be removed. Thus, the EAT concluded that the protection afforded by regulation 10 did not apply, as there were no genuine vacancies for suitable alternative employment.
Learning points
This ruling serves as an important reminder: enhanced redundancy protection for employees within the protected period applies only when there is a genuine, unfilled vacancy. Rather than assuming that remaining roles must be offered as suitable alternatives to employees within the protected period, employers should pause to carefully assess whether such a suitable alternative vacancy actually exists. By taking this step, employers can ensure fair and effective redundancy processes, applying regulation 10 protections only where a genuine vacancy exists.