Can a Woman be made Redundant on Maternity Leave

The recent case of Simpson v Endsleigh Insurance Services Ltd shows that a woman on maternity leave, working for a company making redundancies, does not have an automatic right to be offered a suitable, alternative role.

Regulation 10 of the Maternity and Parental Leave Regulations 1999 states that, if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave, the employee is entitled to be offered a suitable available vacancy with her employer (or an associated employer) and not just invited to apply for that role).

The Regulation states that this right to a vacancy depends on two conditions:

• the work to be done must be both suitable for the woman and appropriate for her in the circumstances.

• the terms and conditions of her new job, including the capacity and place in which she is to be employed, must not be ‘substantially less favourable.’

This gives a woman on maternity leave priority over other employees who are at risk of redundancy, even if they are better qualified for the job.

The employer company in this case closed a number of branches including Mrs Simpson’s place of work in London, while she was on maternity leave. During the redundancy consultation process, she was invited to apply for a position in Cheltenham. She did not apply and claimed that the correspondence had piled up at home while she was recuperating elsewhere. She argued that she should have been offered the new role in Cheltenham.

Endsleigh accepted that the new position was suitable for her, but argued that it was less favourable in relation to its terms and conditions; she would have to relocate and do a seven day shift. It argued therefore, that there was no obligation to offer her that new role.

The employment tribunal held that Mrs Simpson had not been unfairly dismissed and she appealed.

Mrs Simpson claimed that if there was a suitable post, this should have been offered to her even if the terms and conditions of the contract were less favourable.

The Employment Appeals Tribunal confirmed that both conditions under Regulation 10 had to be met. Further, the matter of the job’s suitability was one for the employer to determine and there was no requirement for the employee to be involved in this process.

The employer would have to consider what it knew about the employee’s personal circumstances and work experience, but it was up to the employer to decide whether or not that vacancy was suitable.

Despite this decision, employers still need to consider alternative vacancies in these circumstances very carefully. It may not always be clear what is suitable and favourable.

Employers should ensure they have evidence of why they consider a new role is not ‘suitable and appropriate’ and document their reasoning in case their decision is challenged. Ultimately, if an employer breaches Regulation 10 and then dismisses the employee on maternity leave, the dismissal will be automatically unfair.