Enhanced duty to offer suitable available vacancy 





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 (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:


• during the maternity leave period, continued employment is not practicable because of redundancy; 





• a vacancy exists during the maternity leave period, either with the employer or a subsidiary or associate of the employer;





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





• its terms and conditions are not substantially less favourable than the employee’s 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 (Community Task Force v Rimmer [1986] IRLR 203). The purpose of the special protection is so that employees are not forced to participate in a competitive redundancy selection process at a time when they face the competing demands of 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: 





In Savvides v The Trustees of the British Museum ET Case Number 2200907/2017 (a non-binding tribunal ruling), the redundancy situation began before the woman went on maternity leave and continued during the leave. The employment tribunal ruled that the woman was entitled to a suitable vacancy that became available during her maternity leave. She did not lose her right to that vacancy just because the redundancy situation began before she left for maternity leave. 


There must be a suitable available vacancy during the leave period, coinciding with the period when the woman’s role is at risk of redundancy. 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. For example, it might involve less pay, a significant change of location, fewer hours or a different shift pattern. There is no statutory obligation under regulation 10 to check with the employee on leave whether they would be willing to accept less favourable terms before deciding not to offer them the less favourable vacancy. These issues were considered in the following case: 





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 and is applied on a case-by-case basis rather than an inflexible “blanket” approach, 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, which could well be different from her original job description (Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ).




In practice, women on maternity leave during a redundancy or reorganisation should try to engage with the redundancy selection process as much as possible. 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.





In May 2018, Acas produced new guidance in collaboration with the Equality and Human Rights Commission available from its website, Managing redundancy for pregnant employees or those on maternity leave. 




www.acas.org.uk/media/pdf/o/t/Managing-redundancy-for-pregnant-employees-or-those-on-maternity-leave.pdf