If there is a reduction in the number of roles leading to a redundancy situation, does that mean that there is a vacancy which a employee on maternity leave should be given priority?
In Hunter v Carnival Plc the Employment Appeal Tribunal (EAT) looked at the protection provided by regulation 10 of the Maternity and Parental Leave Regulations 1999 (MAPLE). This Regulation provides that where an employee is on maternity leave and is at risk of redundancy, she should have priority with respect to any suitable alternative vacancy.
The EAT considered in this case whether the protection is engaged in relation to keeping an employee in a role where the number of roles was reducing but not disappearing completely.
The Claimant was on maternity leave when a redundancy exercise took place in which 21 team leader posts at a contact centre were reduced to 16. She was selected and was made redundant. She brought claims of unfair dismissal and maternity discrimination.
The Employment Tribunal found in her favour and held that the remaining 16 team leader roles amounted to suitable alternative vacancies under MAPLE and Ms Hunter should have been retained in one of the available roles.
The EAT disagreed, holding that here there were no actual vacancies. By the time Ms Hunter had been selected for redundancy, there was no vacancy because the remaining 16 roles were not vacant. The EAT distinguished this from the position where two roles amalgamated into one different role, which in that case would be a new vacancy. Her claim for automatic unfair dismissal for a breach of this protection was quashed.
Given the literal interpretation of the protection by the EAT, if you find yourself in a similar situation, there is an alternative claim available. If you believe that your selection for redundancy is because you are on maternity leave, you could bring a claim for direct discrimination and that the act of dismissal was less favourable treatment because of sex.
This blog was written by Anita Vadgama, Partner at didlaw.
