In the recent case of Simpson v Endsleigh Insurance Services the EAT considered the Maternity and Parental Leave Etc Regulations 1999 in the context of deciding whether there is a suitable alternative vacancy for an employee who becomes redundant during her maternity leave.

Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 provides that an employee who is on maternity leave when their job becomes redundant must be offered any suitable available vacant job that exists before her redundancy takes effect.

In the Simpson case, the Claimant was employed by the Respondent as an Insurance Consultant in one of the Respondent’s London branches. During the Claimant’s maternity leave the Respondent decided to close the majority of its branches and relocate its insurance consultants to call centres in Cheltenham, Burnley and Northern Ireland. The Claimant was sent details of alternative vacancies within the Respondent and was invited to find out more about the roles or apply for any roles she was interested in. She was also informed that all insurance consultants were guaranteed a role within one of the call centres if they were willing to transfer to these locations. At the time however the Claimant did not indicate to the Respondent that she was interested in any of the roles which were sent to her. The Respondent concluded that there were no suitable alternative vacancies for the Claimant who was therefore made redundant. The Claimant claimed automatic unfair dismissal.

At first instance the Tribunal held that the new posts for which the Claimant claimed would have been suitable were in fact not suitable because she would have been required to relocate. Although the Claimant told the Tribunal she would have been willing to relocate the Tribunal did not accept that evidence. The Tribunal concluded that the jobs identified were either not suitable for her or appropriate for her to do in the circumstances because of the relocation. In relation to the insurance consultant post which was guaranteed to her, the Tribunal found that, looking at it objectively, the role was less favourable to the Claimant in terms of place of employment than if she had continued to be employed under her previous contract and therefore there was no obligation for the Respondent to offer the Claimant the post and there was no breach of regulation 10.

In upholding the Tribunal’s decision the EAT confirmed:

  • Regulations 10(3)(a) and 10(3)(b) of the Maternity and Parental Leave Regulations 1999 should be read together; and
  • The Tribunal was correct to focus on an objective decision made by the employer. There is no requirement on the employee to engage in the process and it is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable.  

This case serves a useful reminder that, in order to be a suitable alternative vacancy in a maternity leave scenario, the terms and conditions of the new job must be suitable and appropriate for the employee and the capacity, place and other terms and conditions must not be substantially less favourable to the employee than those under her existing contract.

However, when considering whether a role would be a suitable alternative and when considering the wider ‘normal’ redundancy consultation considerations, consideration should be given to the employee’s individual circumstances and in almost all cases employers will be well advised to consult with employees about the alternative employment issue. Employers should also document any issues identified during the process and the outcome.