Women made redundant during maternity leave

The obligation to look for alternative employment is much stricter for women made redundant when pregnant or on maternity leave. Regulation 10 of the Maternity and Parental Leave Regulations 1999 gives important rights to women at risk of redundancy while on maternity leave. The same protection is also available to employees on adoption or additional paternity leave (see Chapter 8)

Regulation 10 says that where an employee’s role becomes redundant during maternity leave and a suitable available vacancy exists, she is entitled to that vacancy, regardless of whether she is the best candidate. To trigger the regulation, the work must be both suitable for the employee and appropriate for her to do in the circumstances and it must be on terms not substantially less favourable than those of her old contract.

This regulation was examined in Simpson v Endsleigh Insurance Services Ltd (UKEAT/0544/09). The EAT confirmed that it is for the employer to decide whether a particular vacancy is appropriate for the employee’s skills and suitable, taking into account what he knows about the employee, including personal circumstances. All parts of the regulation must be satisfied before the employer is obliged to offer the post. In particular, there is no implied obligation on the employer to consult with the employee before deciding whether a vacancy is suitable.

In other words, if the employer decides that a particular vacancy is not suitable for the employee on maternity leave, there is no obligation to offer it to her.

In the Simpson case, the employer was not obliged to offer a vacancy to Ms Simpson, made redundant while on maternity leave, because it would have required relocation and a longer shift pattern, meaning that it was on substantially less favourable terms.

Given the narrow scope of this protection, it is vital that employees on maternity leave during a redundancy consultation process engage proactively with the employer and communicate 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 or shift work or relocation.