In this case, the claimant was on maternity leave when a redundancy exercise reduced the respondent’s team leader positions from 21 to 16, resulting in the claimant being made redundant. Following her dismissal, she brought claims of unfair dismissal and maternity discrimination.
The Employment Tribunal found that the respondent had failed to offer the claimant suitable alternative roles that were available within the company. Under Regulation 10 of the Maternity and Parental Leave Regulations 1999, employers are required to offer any suitable vacancies to employees on maternity leave before considering them for redundancy. The Tribunal held that the respondent had not met this obligation, as there were vacant roles that could have been suitable for the claimant, but these were not properly offered to her.
However, the Employment Appeal Tribunal (“EAT”) found that the Employment Tribunal had misapplied the law. It determined that the 16 remaining team leader roles, already filled by the other affected employees before the claimant’s employment ended, did not constitute “suitable alternative employment” as defined by Regulation 10(2). This regulation states that where there is a suitable vacancy, the employee must be offered it, but in this case, the EAT concluded that no such vacancy existed by the time of the claimant’s redundancy (when her employment ended). The EAT stated that where “…there is a conventional redundancy scenario in which there is simply a reduction in existing roles, Regulation 10 does not override a valid selection process requiring, in effect, a woman eligible for Regulation 10 protection but who scored lower than others to bump someone who would otherwise have retained his or her job following the reduction in roles by having scored higher.
However, when roles are merged or significantly altered during a redundancy process, any newly created position may still qualify as “suitable alternative employment” if it remains similar to the previous role. Employers must clearly communicate and offer such roles, particularly in light of the enhanced protections afforded to those on maternity leave under Regulation 10.
The decision highlights the importance of offering available roles, even if restructured, to employees at risk of redundancy, especially those on maternity leave, ensuring their legal rights are upheld throughout the process. It also clarifies that a fair selection process which results in a reduction of roles held by the employee seeking to rely on Regulation 10 does not create additional protection if the employee scored lower than her colleagues.
Charmaine Adebare comments:
The case of Carnival Plc v Hunter is significant as it provides clear guidance on the employer’s position when reducing a workforce- for example, from 15 employees down to 10- where the employees in the selection pool perform the same role. It confirms that Regulation 10 does not grant additional rights to override the selection process, allowing a woman eligible for Regulation 10 protection to get priority even if she has scored low in the selection process. Regulation 10 does not offer enhanced rights to employees returning from maternity leave where a fair selection process has been conducted.
If you have any questions on the maternity protections available or suitable alternative roles, please contact a member of the team here.
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