Since April 2024, women who are pregnant, on maternity leave or who have given birth within the preceding 18-month period have additional protections during a redundancy process which gives them a priority right to suitable alternative vacancies. Prior to that the protected period applied during maternity leave only. The protection arises under Regulation 10 of the Maternity and Parental Leave Regulations 1999 ("MAPLE").
In Carnival Plc t/a Carnival UK v Hunter the claimant was on maternity leave when a redundancy exercise took place. She was one of 21 team leaders working for a cruise operator. Her maternity leave started in April 2020, just as Covid-19 hit, impacting significantly on the cruise ship industry. The claimant was one of five team leaders to be made redundant. She brought a successful claim to the employment tribunal ("ET"). The ET held that that the remaining 16 team leader roles amounted to suitable alternative vacancies under MAPLE and that the claimant should have been offered one.
The employer appealed. The employment appeal tribunal ("EAT") disagreed with how the ET had applied MAPLE. A fair selection procedure had been followed and the lowest scoring five employees had been selected. None of the remaining 16 roles were ever vacant, they were and always had been filled by the top 16 scoring team leaders. They were therefore not suitable alternative vacancies that should have been offered to the claimant.
What does this mean for employers?
In essence the EAT are saying that for an employee to rely on MAPLE there must be an actual vacancy. That may sound simple, but it can be easy to lose sight of exactly what a vacancy is in these circumstances. MAPLE does not entitle a woman to "bump" another employee from their substantive role just because the redundancy procedure has taken place during that woman's protected period. In contrast, in a hypothetical situation where two roles disappear, rendering the post holders redundant, and there is one new role available that is a suitable alternative vacancy then MAPLE would apply, and that new role should be offered to the protected employee.
Where an employer is undertaking a redundancy process and an employee or employees may have enhanced protection under MAPLE it is important to properly assess whether a suitable alternative vacancy exists, triggering the enhanced protection. If MAPLE does not apply, the selection for redundancy can proceed in the normal way.
The future
The Employment Rights Bill is, via regulations, to extend protection further so it will be unlawful to dismiss employees who have been pregnant, or those who have taken various statutory family related leave, within six months of their return to work, save in "specific circumstances". What will amount to those "specified circumstances" is currently unknown but will be of great interest to employers once defined.
