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Enhanced duty to offer suitable available vacancy
[ch 11: pages 398-400]Men and women at risk of redundancy during maternity, adoption or shared parental leave are entitled to special protection in the context of offers of alternative employment. The rules are found in regulation 10 of the Maternity and Parental Leave Regulations 1999 (as amended) (MAPLR).
The employer must offer a suitable available vacancy to anyone on maternity, adoption or shared parental leave who would otherwise be made redundant. 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 triggered where:
• the role becomes redundant during the leave period;
• a vacancy exists, either with the employer or a 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.
This 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 are not forced to participate in a competitive redundancy selection process at a time when they face competing demands due to new caring responsibilities. They have a right to be offered the vacancy, not simply to compete for it.
The protection provided by regulation 10, MAPLR was considered in this important case:
A woman was on maternity leave when her role and that of her male colleague were deleted in a restructuring exercise and amalgamated into a new post of Democratic Service Manager (DSM). The council conducted a competitive selection process for the DSM role and awarded it to the man because he was the best candidate. The woman was made redundant. The EAT confirmed that this was a breach of regulation 10, and that the woman’s subsequent dismissal for redundancy was automatically unfair. The DSM role was a “suitable available vacancy” into which the woman on maternity leave should have been slotted without competition.
The EAT suggested that if more than one suitable available vacancy had been created in the restructuring, the council could probably have offered the woman on maternity leave another suitable vacancy instead of the DSM role, which could then have been offered to their preferred candidate without infringing regulation 10, MAPLR.
Sefton Borough Council v Wainwright [2014] UKEAT 0168/14/1310
To trigger the special protection, there must be an available vacancy. There is no obligation to create a job for the employee on leave, or to bump someone else out of their job. “Vacancy” is not defined but it includes roles created in an internal restructuring (Sefton Borough Council v Wainwright [2014] UKEAT 0168/14/1310).
Only a “suitable” vacancy must be offered. If the role is not “suitable”, there is no obligation to offer it. Employers must approach the question of suitability in a rational, non-discriminatory way, taking into account the 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 to the employee on leave. This could be the case, for example, if it involves less pay, a significant change of location, fewer hours or a different shift pattern. There is no statutory obligation under regulation 10 to check first with the employee on leave whether they would be willing to accept less favourable terms before deciding not to offer the role. These issues were considered in the following case:
Ms Simpson’s role was made redundant in a reorganisation during her maternity leave. There were several available roles she was qualified to fill but they were on different sites and involved longer shifts. The EAT said that the employer was not obliged to offer these vacancies to her because the terms were substantially less favourable — they would have required her to relocate and to work a longer shift pattern. There was no obligation under regulation 10 to check first to see whether Simpson was prepared to relocate or to work different hours before deciding that the vacancy was less favourable. It is worth noting that in this particular case, Simpson had shown no interest in the vacancies.
Simpson v Endsleigh Insurance Services Limited [2010] UKEAT 0544/09/2708
Some employers adopt uniform policies to assess when roles are “suitable”, such as using salary and/or grading bands, so that, for example, any post with a salary band that is 10% higher or lower than that of the redundant post is deemed “unsuitable”. As long as this kind of policy is reasonable, it is likely to be fair.
When deciding whether a vacancy is suitable, it must be compared with the employee’s role when she went on maternity leave. This could well be different from her original job description or written statement of particulars (Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ).
In practice, members on maternity 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 (for example, by email) to the employer early in the process.
The ECJ has been asked to rule on whether the enhanced protection from redundancy should be provided not only to women on maternity leave but also to women who are pregnant but not yet on leave, including women who do not know yet that they are pregnant, or know but have not yet told their employer. An AG’s Opinion in the case of Guisado v Bankia and others, Case C-102/16, suggests that protection should be extended to these women in some circumstances. However, it will be up to the ECJ to decide whether to change the law. In any event, the implications of any change are uncertain due to Brexit.
Acas has produced guidance in collaboration with the Equality and Human Rights Commission: Managing redundancy for pregnant employees or those on maternity leave.