Simpson v Endsleigh Insurance Services Ltd and others 2010 AER 95

Ms Simpson worked as an insurance consultant in London and was made redundant while she was on maternity leave. She brought a claim for unfair dismissal. Endsleigh had transferred all their work to call centres. During collective consultation 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. The tribunal dismissed her claim. Although there were 4 vacancies all based in Cheltenham, which it considered were potentially suitable for her, as she could not have relocated to Cheltenham, those vacancies were either not suitable or appropriate for her. The place in which she was to be employed, Cheltenham, was substantially less favourable to her than if she had continued to be employed under her previous contract in London. Therefore none of these jobs had been suitable alternatives. The Tribunal held that Endsleigh had not been obliged to offer them to her.

She appealed and the EAT dismissed her appeal. The EAT rejected her argument that Endsleigh should have offered her one of the potential suitable roles rather than simply sending her information and inviting her to apply. Under the Maternity and Parental Leave Regulations 1999 there is no requirement on the employee to engage in the process. It is up to the employer knowing what it does about the employee to decide whether or not a vacancy is a suitable alternative one.

Key point: As it is difficult for employers to decide whether to offer a position to employees on maternity leave, it would be prudent for employers making redundancies to engage in specific consultation with those employees, in addition to collective consultation, to discuss suitable alternative employment and other alternatives to redundancy as a precautionary measure, as those on maternity leave are protected under the Regulations, in preference to those who are working, by being entitled to be offered suitable vacancies ahead of those not on leave.