UK: Redundancies: Suitable Alternative Employment – Pregnancy and Family Leave
Authors: Charles Urquhart and Corinna Harris
The Employment Appeal Tribunal has provided clarification on redundancy protection for pregnant employees and new parents.
Ms. Hunter, one of 21 contact centre team leaders, went on maternity leave in early April 2020, after the start of the COVID-19 Pandemic. A few weeks later, Carnival notified its employees that it would be making redundancies. The team leaders were placed at risk of redundancy, with these posts being reduced to 16. As one of the five leaders with the lowest scores in the redundancy exercise, Ms. Hunter was selected for redundancy.
Under the Maternity and Parental Leave Regulations (MAPLE), employers must offer any suitable vacancies to pregnant employees (from the date they tell their employer they are pregnant until their maternity leave starts) and maternity leavers and shared parental leavers (for 18 months from the expected week of childbirth or after the child’s birth respectively). Where an employer does not comply with MAPLE, the employee is entitled to be treated as automatically unfairly dismissed.
The EAT held that there were no suitable vacancies so her claim for automatic unfair dismissal failed. The pre-existing team leader roles did not constitute a suitable vacancy which should have been offered to Ms. Hunter.
Key Action Points for Human Resources and In-House Counsel
MAPLE does not apply to roles in a reorganisation that are reduced in number. However, where new roles are created, these may constitute a suitable alternative vacancy and in accordance with MAPLE, should be offered to individuals selected for redundancy who are pregnant, on family leave or have recently returned from such leave.
The EAT clarified that MAPLE engages after the selection process has taken place. So where an employee qualifies for protection under MAPLE, if they are scored lower than others in a selection process, they do not take precedence over someone who would otherwise have retained their job following the selection process.
