Employment & Pensions Blog: Redundancy protection during maternity leave - suitable alternative employment following Carnival PLC v Hunter:

Under Regulation 10 of the Maternity and Parental Leave Regulations 1999, where an employee is

• Pregnant
• On maternity leave
• Up to 18 months after the birth 

they are entitled to be offered any suitable vacancies before being made redundant.

This requirement for employers to offer a suitable alternative vacancy during maternity leave was the focus of a recent Employment Appeal Tribunal decision in the case of Carnival PLC v Hunter, which will have important ramifications for employers when carrying out future redundancy exercises that involve employees in the protected period.   

Background

Ms Hunter worked as a Team Leader for Carnival PLC, which operates several cruise lines. Whilst she was on maternity leave, a redundancy exercise took place in which 21 Team Leader positions were being reduced to 16. Ms Hunter was one of 5 Team Leaders who were selected for redundancy based on scores she achieved through the redundancy selection process. 

She was made redundant whilst still being on maternity leave and Ms Hunter subsequently brought claims of unfair dismissal and maternity discrimination.

The Employment Tribunal

The question for the Employment Tribunal centred on whether Ms Hunter had a right to be offered one of the vacant Team Leader posts because she was on maternity leave and the post was a suitable alternative vacancy.  

The Employment Tribunal agreed with Ms Hunter and found that the 16 remaining Team Leader positions were suitable alternative vacancies, and she should have been retained in one of them rather than being made redundant. Ms Hunter’s claims of unfair dismissal and discrimination were therefore upheld, 

Carnival PLC appealed the decision to the Employment Appeal Tribunal. 

The Employment Appeal Tribunal 

The Employment Appeal Tribunal disagreed and overturned the Employment Tribunal’s Judgment. The Appeal Tribunal focussed on the wording in Regulation 10, which stipulates that the entitlement is to be offered a suitable alternative vacancy “before the end of her employment under her existing contract”.

In this case, by the time Ms Hunter had been selected for redundancy, there were no longer any vacancies available to offer her. The 16 vacant Team Leader posts had already been filled following the redundancy selection process, and therefore at the point Ms Hunter was made redundant, there were no longer any vacancies available to offer her. 

Comment

The Employment Appeal Tribunal’s decision emphasises that the requirement in Regulation 10 to offer a suitable alternative vacancy does not provide an additional right that trumps a fair redundancy selection process. 

Many employers approach redundancy exercises by removing such employees from the redundancy selection process and offering them a suitable vacancy by default. However, this Judgment clarifies that that is not the right approach. A fair redundancy selection process should be carried out, and if an employee who qualifies for Regulation 10 protection scores lower than other employees, she should not be offered one of the vacant positions instead of an employee who scored higher than her. Instead, once the vacancies have been filled by those who scored higher than her, she is then entitled to be offered any remaining suitable vacancies if any exist. Employers should be mindful of this in any future redundancy processes involving employees in the protected period. 

If you require any further assistance or support in connection, please contact a member of the Employment team.