Where an employer decides to replace two roles, one of which is currently held by an employee on maternity (or other family-related) leave, with a new role combining aspects of both, the employer may have to offer that new role to the employee on leave even if the other is a better candidate.

The duty to offer a suitable alternative vacancy to an employee on family-related leave arises as soon as the employer becomes aware that the individual’s role is redundant.

The restructuring in this case involved both current employees’ roles being made redundant and one new, “suitable alternative” role being created. The EAT ruled that that role should have been offered to the employee on maternity leave without her having to compete for it. The employer would only have been able to appoint the better candidate to the new role if it had had another suitable vacancy it could have offered to the employee on maternity leave.

The failure to offer the claimant the new role rendered the dismissal automatically unfair. The case was sent back to the tribunal to consider whether it was also unlawful maternity discrimination (which would require the reason for the treatment to be that the employee took maternity leave). (Sefton BC v Wainwright)

This case highlights the difference between this type of restructuring and a simple reduction in the number of individuals performing a certain role. Had the two original roles and the single continuing role been the same in this case (ie, a simple removal of one of two roles), the employer could have selected from the pool of two using fair criteria and the employee on maternity leave would have had no right to preferential treatment in the selection process. Only once the selection had been completed would she have been redundant and have the right to be offered a suitable vacancy.

Note that similar rights will be available to those who take shared parental leave.