Regulation 10 of the Maternity and Parental Leave Regulations 1999 (Regulations) states that an employee on maternity leave is entitled to be offered a suitable available vacancy with her employer, in the event "it is not practicable by reason of redundancy" for the employer to continue to employ her under her existing contract.
The right to be offered such a vacancy is dependent on two conditions:
The protection afforded by Regulation 10 derives from European law, namely the Maternity Directive. This protects pregnant workers and those on maternity leave from dismissal by requiring that they may only be dismissed for reason of redundancy in "exceptional cases not connected with [her] condition which are permitted under national legislation and/or practice".
Advocate General Sharpston considered the case of a Spanish worker who was dismissed following a collective redundancy process. The employer argued that the collective redundancy exercise fell within the exception. However, Advocate General Sharpston concluded that in order to rely on the 'exceptional case' exception, there must be no plausible possibility of reassigning the pregnant worker to another suitable post. A collective redundancy process would not therefore necessarily mean that the exception from the prohibition on dismissing pregnant workers applies.
This opinion serves as a useful reminder of some of the rules surrounding the dismissal of pregnant women and those on maternity leave.
Employers who wish to dismiss an employee on maternity leave by reason of redundancy will need to ensure that they are complying with the Regulations. In particular if they deem a role not to be 'suitable and appropriate' then they should have clear evidence of why this is and should document how they have reached this conclusion. Employers cannot assume that a collective redundancy exercise is an 'exceptional case'.
Significantly, this opinion notes the protection is afforded to pregnant workers, whereas the Regulations protect those on maternity leave. The opinion is not binding on the court and it remains to be seen how this case will ultimately be decided. The implications of this case could, however, be that the principle to offer an alternative vacancy is extended beyond its current ambit.