A case that hinged on whether a woman who became redundant while on maternity leave should have been offered an alternative job underscores the importance of a cautious approach from employers.
The Employment Appeal Tribunal (EAT) ruled in the case of Simpson and others v Endsleigh Insurance Services that the employer was not obliged to offer a vacancy in Gloucestershire to an employee whose job in London became redundant during her maternity leave.
How maternity leave affects redundancy
Maternity leave rules stipulate that if an employee is made redundant during maternity leave, the employer must offer her any suitable vacancy, ahead of anyone else. A dismissal in breach of the regulations is automatically unfair.
While Ms Simpson was on maternity leave, her employer relocated most of its work from London, where she had been based, to call centres elsewhere in the UK.
Ms Simpson was informed of vacancies at the other call centres, but did not express any interest and was dismissed by reason of redundancy. She started proceedings for automatic unfair dismissal, claiming she should have been offered a job in Cheltenham ahead of all others.
Why you shouldn’t count on getting lucky
Crucial to the EAT’s deliberations was that Ms Simpson had known about the vacancies but chose not to apply for any job. The EAT confirmed that the employer was only obliged to offer the role to Ms Simpson if it was suitable. However, it was up to the employer – which knew Ms Simpson had shown no interest in the vacancies – to decide whether or not a vacancy was suitable.
From the employer’s point of view, it was lucky that the EAT found Ms Simpson would not have relocated from London to Gloucestershire.
What does this mean for my company?
Employers facing similar situations are well-advised to discuss vacancies specifically with the employee on maternity leave to establish what she is willing to consider. Employers who fail to do this run the risk that the employee may be willing to consider a move to another location. If that is the case, the employee is likely to succeed with a claim if she has not been offered the position.
Steps you should take
Employers should adopt a cautious approach to redundancy situations involving staff on maternity leave and take professional advice on the redundancy consultation process.
If you would like to discuss this or any other employment law matter, please contact Roger Spence on 01772 208072, or at firstname.lastname@example.org