Simpson v Endsleigh

EAT upholds decision that regulations 10(3)(a) and 10(3)(b) of the Maternity and Parental Leave Regulations should be read together when determining suitable vacancies for an employee whose job becomes redundant during maternity leave.

The EAT in this case dismissed Ms Simpson’s appeal against an Employment Tribunal’s finding that she had not been automatically unfairly dismissed. The Tribunal found that there were suitable alternative vacancies based in an alternative location to Ms Simpson’s redundant role (Cheltenham). However, it also found that Ms Simpson would not have accepted a relocation to Cheltenham, and therefore those vacancies were either not suitable in relation to her, or not appropriate for her to do in the circumstances because of the required relocation. Therefore none of the alternative vacancies had been suitable alternatives, and Endsleigh had not been obliged to offer them to Ms Simpson, even though she was on maternity leave.

Implications

Although the EAT’s decision fell in the employer’s favour on this occasion, the protracted nature of litigation in this case emphasises the value of engaging in specific consultation with employees who are on maternity leave, in addition to an employer’s "normal" redundancy consultation process. Where a suitable alternative vacancy is identified, it should be discussed with the employee to determine if it is “suitable”, and the employer should document the issues identified during the process to protect their position in the event of a dispute.

Background

The Maternity and Parental Leave Regulations 1999 (SI 1999/3312) (“the MPL Regs”), provide that an employee whose job becomes redundant during her maternity leave is entitled to be offered any suitable available vacancy that exists at her employer or any associated employer.

Where such a suitable vacancy exists, the employee is entitled to be offered alternative employment with her employer under a new contract. It is “suitable” if the work to be done under it is suitable for the employee and appropriate for her to do in the circumstances (regulation 10(3)(a) MPL Regs). The provisions as to the capacity and place in which she is to be employed, and the other terms and conditions must not be substantially less favourable than those of her previous contract (regulation 10(3)(b)). A dismissal arising as a result of an employer’s breach of regulation 10 will be automatically unfair.

Ms Simpson was employed by Endsleigh as an insurance consultant in London. While she was on maternity leave, Endsleigh decided to close most of its retail outlets and to transfer the work to call centres in Cheltenham, Burnley and Northern Ireland. As part of a collective consultation exercise on proposed redundancies, all absent staff (including Ms Simpson) were sent details of alternative vacancies and invited to apply. In addition, all insurance consultants were guaranteed a role in one of the new call centres if they were willing to transfer (with a relocation package).

Ms Simpson expressed no interest in any of the vacancies (except one in London, which was later agreed to be unsuitable). After Endsleigh sent her a letter confirming her redundancy, Ms Simpson issued tribunal proceedings claiming that she had been automatically unfairly dismissed.