In the recent case of Simpson v Endsleigh Insurance Services Ltd, the EAT has confirmed that, in the context of a redundancy situation, whether a particular alternative vacancy is suitable for a woman on maternity leave is a question to be determined objectively by the employer, having regard for the employee's personal circumstances. There is no requirement for the employee to participate in this process.
Miss Simpson worked for Endsleigh as an insurance consultant at one of its London branches. During her period of maternity leave Endsleigh closed down several branches including the one where Miss Simpson worked and relocated its business to various call centres. As part of its redundancy consultation process Endsleigh sent details of various alternative vacancies to Miss Simpson, including one at the new Cheltenham call centre, and invited her to apply for them if she was interested. Miss Simpson did not apply for any vacancies and was subsequently dismissed as redundant. She brought a claim in the employment tribunal for automatic unfair dismissal, arguing that, at the very least, Endsleigh should have offered her one of the alternative positions, rather than simply sending information and inviting her to apply.
In a redundancy situation, an employee on maternity leave is entitled to be offered suitable alternative employment on terms that are not substantially less favourable to her than if she had continued to be employed under her previous contract (Regulation 10 of the Maternity and Parental Leave Regulations 1999). Endsleigh argued that it was not required to offer the Cheltenham position to Miss Simpson because, although the role was suitable and appropriate in the circumstances, its terms and conditions were substantially less favourable to her, as she would have had to both relocate and change her work pattern from weekdays only to working a seven-day shift.
The EAT agreed. It found that in order to be a suitable alternative vacancy, both requirements in Regulation 10 had to be satisfied i.e. the vacancy had to be both suitable and appropriate in the circumstances and its terms and conditions must not be substantially less favourable. Accordingly, Endsleigh had not been obliged to offer the Cheltenham role to Miss Simpson.
The EAT also clarified that it is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable. It found that, in reaching an objective decision, the employer would have to consider what it knew about the employee's personal circumstances and work experience.
Impact on employers
- Employers must ensure that, where they propose to make an employee on maternity leave (and equally on adoption leave) redundant, if a suitable alternative role can be identified they must offer it to the employee in question in preference to other potentially redundant candidates. It will not be sufficient to provide the opportunity for an employee to apply or to send her a list of vacancies.
- The EAT acknowledged that this might be very difficult for employers, especially if they have to decide, for example, whether to offer a more senior post. It disagreed with the tribunal's suggestion that an employer could, in those circumstances, try to assess suitability by requiring a protected employee to submit to assessment and interview.
- Whether or not a vacancy meets both requirements set out in Regulation 10 may not always be clear and employers may wish to err on the side of caution by offering the relevant employee any vacancies that are likely to satisfy the test. Whilst a change of location was sufficient in this case to render a vacancy "substantially less favourable", this may not always be the case.
- Where an employer considers that a particular vacancy is not suitable for the employee in question (having regard to the employee's personal circumstances), it should ensure that there is suitable documented evidence which clearly demonstrates its rationale for its decision, in the event that this is challenged at a future date.