Maternity, adoption and additional paternity leave

The obligation to look for alternative employment is much stricter in cases where pregnant women or employees on maternity, adoption or additional paternity leave are at risk of redundancy.

Where an employee’s role becomes redundant during maternity, adoption or additional paternity leave and there is a suitable available vacancy, the employee on leave must be offered that vacancy, regardless of whether they are the best candidate. To trigger the obligation to offer the role, the work must be suitable for the employee and appropriate for the employee to do in the circumstances, and must be on terms not substantially less favourable than those of the old contract. All these conditions must be satisfied before the employer becomes obliged to offer the role. This rule is found in regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR 99),

The rule also applies where there are suitable available vacancies at any subsidiaries or associated companies in the same group as the employer.

The rule is subject to a number of important limitations that employees need to be aware of.

Firstly, there has to be an available vacancy. The employer does not have to create a job for the person made redundant, or bump someone else out of their job. Secondly, the employee must be suitable for any vacancy. The rules allow the employer quite a lot of freedom to decide whether or not the employee is suitable for the job — and therefore whether they are obliged to make the offer.

As long as the employer approaches the question of suitability in a rational and non-discriminatory way, it can be hard to challenge a decision not to offer a role to which an employee thinks they are suited. The employer should take into account the employee’s skills and qualifications, but can also take into account what they know of their personal circumstances. There is no formal obligation under regulation 10 to approach the employee first to discuss the vacancy, if the employer has decided that they are not suitable.

For example, in Simpson v Endsleigh Insurance Services Ltd [2010] UKEAT 0544/09/2708), the employer was not obliged to offer Ms Simpson an available vacancy when she was made redundant during maternity leave because to take the new job, she would have needed to relocate and work a longer shift pattern, meaning that the vacancy was on “substantially less favourable” terms. There was no obligation under regulation 10 to ask her first whether she was prepared to relocate, or to work different hours before deciding that the vacancy was not suitable.

Some employers adopt uniform policies to decide when roles are “suitable”. For example, using salary differentials, so that any post with a salary band 10% more or less than that of the redundant post is deemed not to be “suitable”. As long as there is scope to exercise discretion in exceptional circumstances, this kind of policy is likely to be lawful.

In Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ, the EAT reminded employers that when deciding whether a role is suitable, the vacancy must be compared with the role the employee was contracted to perform at the date she went on maternity leave. This may well be different from the role in her original job description or written contract terms.

Given the limited scope of the protection, it is important that employees on maternity leave do not simply rely on their employer to offer any vacancy that comes up for which the employee thinks they would be suitable. Instead, it is important to engage with the employer, keeping in touch throughout the redundancy process and communicating clearly (and in writing, for example, by email) any willingness to accept less favourable terms to avoid redundancy, for example, a job share, part-time, shift work, a lower banding, relocation or training.

In addition to the protection provided by regulation 10, there is, of course, a general duty to consult over whether or not any vacancy is suitable, and breach of this duty could result in an ordinary unfair dismissal, under the general principles outlined on pages 274-276.