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Statutory obligation to offer suitable available vacancies
Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regulations) gives important statutory rights to an employee whose role becomes redundant while on maternity, adoption or additional paternity leave. The law says that where an employee’s role becomes redundant during maternity, adoption or additional paternity leave and a suitable available vacancy exists, the employee on leave must be offered that vacancy whether or not they are the best candidate.
This is the case even if the redundancy occurs before the employee has given notice of intention to return (Philip Hodges v Kell [1994] ICR 565).
Where the employer is a member of a group of companies, the obligation extends to suitable available vacancies at other subsidiaries within the group. To trigger the obligation, there must be an actual vacancy to offer. There is no obligation to “bump” other employees out of their jobs to prevent the redundancy, or to create a new job where none exists.
To trigger the regulation, the vacancy must be both suitable for the employee and appropriate for them to do in the circumstances. It must also be on terms and conditions not substantially less favourable than those of their old contract.
The regulation was examined in the following case:
Ms Simpson’s role became redundant during maternity leave when Endsleigh Insurance decided to close down its branches and replace them with UK-based call centres. The employer consulted collectively, notifying staff of various job opportunities in the call centres. Letters were sent to Simpson’s home, some containing details of vacancies she was invited to apply for. She did not apply for any of the jobs.
Following her redundancy, she brought a claim for automatic unfair dismissal. She said her redundancy dismissal was automatically unfair and a breach of regulation 10 of the MPL Regulations, because her employer had failed to offer her one of the call-centre positions.
The tribunal found that although four of the vacancies were “suitable” for Ms Simpson, in that they were roles she was qualified to perform, they were on terms “substantially less favourable” to her because she would have needed to relocate and work a longer shift pattern. The employer was not obliged to offer her any of those roles because the terms were “substantially less favourable”. The EAT confirmed that the two parts of the regulation must be read together, and both must be satisfied in order to trigger the obligation to offer the post. In other words, before an employer is obliged to offer a role to an employee on maternity, adoption or additional paternity leave, the role must be both suitable and on terms that are no less favourable than the existing job.
Simpson v Endsleigh Insurance Services Ltd and others [2010] UKEAT/0544/09/DA
It is for the employer to decide whether a vacancy is suitable, taking into account their knowledge of the employee, including personal circumstances. The employer owes no legal duty to consult with the employee before deciding whether a vacancy is suitable and appropriate.
The Simpson case illustrates the importance of engaging proactively in redundancy consultation and being clear about any willingness to accept terms that the employer might otherwise decide are “less favourable”. This might include, for example, a new commute, shorter hours or a different shift pattern. Keep a record of communications, for example through email.
Failure to offer a suitable available job to an employee made redundant while on maternity, adoption or additional paternity leave will result in automatic unfair dismissal. Any suitable available vacancy must be offered. Whether or not it is” reasonable” for the employer to be required to offer the role to the employee is not relevant (Community Task Force v Rimmer [1986] IRLR 203).
The special position of disabled employees in the context of redeployment is looked at in Chapter 4.