Enhanced duty to offer suitable available employment

Men and women who are at risk of redundancy when on maternity, adoption, additional paternity leave and (for babies born or matched for adoption on or after 5 April 2015), shared parental leave are entitled to special protection in the context of alternative employment. The rules are found in Regulation 10 of the Maternity and Parental Leave Regulations 1999 (as amended) (MAPLR).

Where a redundancy situation arises while an employee is on one of these categories of leave, the employee on leave must be offered a suitable available vacancy. Dismissal as a result of failure to offer a suitable available vacancy will be automatically unfair.

The obligation to offer a suitable available vacancy is only triggered where:

• the role becomes redundant during the leave period;

• a vacancy exists, either with the employer or any subsidiary or associate of the employer;

• the vacancy is suitable and appropriate for the employee; and

• the terms and conditions of the vacancy are not substantially less favourable than their existing contract terms.

In a restructuring, the right to be offered a suitable available vacancy arises as soon as the absent employee’s post is deleted or proposed for deletion, rather than at a later stage, such as when the redundancy notice is issued (Sefton Borough Council v Wainwright [2014] UKEAT 0168/14/1310).

The right to be offered a suitable available vacancy is absolute. There is no “reasonableness” test. If there is only one suitable available vacancy, it must be offered to the employee on leave, regardless of whether there is a better candidate. This is because the purpose of the special protection is to ensure that employees in this position are not forced to participate in a competitive redundancy selection process at a time when they face demands on their time and energy due to their immediate caring responsibilities. It is a right to be offered the vacancy, not just to compete for it.

In a restructuring, where two roles, one of which was held by an employee on leave, are amalgamated into one, the new role must be given to the employee on leave, as long as it is suitable and on terms no less favourable than her deleted role. However, where there is more than one suitable available vacancy in the restructuring, the employer can probably choose which one to offer the employee on leave. These issues were considered in an important new case:

To trigger the protection provided by regulation 10, there must be an available vacancy. There is no obligation to create a job, or to bump someone else out of their job. “Vacancy” is not defined in the regulations, but in Sefton Borough Council v Wainwright [2014] UKEAT 0168/14/1310, the EAT confirmed that roles created in a restructuring exercise are “vacancies” which must be offered. It made no difference that the pool of potential candidates included only employees who were affected by the restructuring.

Only a “suitable” vacancy must be offered. If a role is not suitable there is no obligation to offer it. Employers must approach the question of suitability in a rational and non-discriminatory way, taking into account an employee’s skills and qualifications.

If the terms and conditions are significantly worse than those of the employee’s existing role, there is no statutory obligation to offer the vacancy. This could be the case, for example, where the vacancy involves less pay, a significant change of location, fewer hours or a different shift pattern. There is no obligation under regulation 10 to check with the employee on leave whether they are willing to accept less favourable terms before deciding not to offer the role. These issues were considered in the following case:

Even where there is no statutory obligation under regulation 10 MAPLR to offer a vacancy because it is on less favourable terms than the employee’s existing role, a failure to offer that role could lead to an ordinary unfair dismissal (see Chapter 10) depending on the context.

Some employers adopt uniform policies to decide when roles are “suitable”, for example, using salary and/or grading bands, so that, say, any post with a salary band 10% higher or lower than that of the redundant post is deemed “unsuitable”. As long as this kind of policy is within the band of responses of a reasonable employer it is likely to be fair.

When deciding whether a vacancy is suitable, it must be compared with the employee’s role at the date she went on maternity leave. This may well be different from the role in a member’s original job description or written contract terms (Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ).

In practice, members who are away on leave during a redundancy or reorganisation should try to involve themselves actively with the redundancy selection process as much as possible. They should not simply rely on their statutory rights. In particular, any willingness to accept different or less favourable terms to avoid redundancy, for example, a job share, part-time, shift work, a lower banding, relocation or training, should be communicated clearly and in writing (e.g. by email) to the employer early in the process.

In 2012, Acas issued new guidance available from its website, in collaboration with the Equality and Human Rights Commission: Managing redundancy for pregnant employees or those on maternity leave.

As explained in Chapter 8, shared parental leave is available to qualifying parents whose babies are matched for adoption or born on or after 5 April 2015. From this date, some employees will find themselves moving in an out of the special protection from redundancy provided by regulation 10, especially during long-running restructurings.