In this case the Employment Appeal Tribunal (EAT) held that remaining, existing roles in a reorganisation are not a suitable alternative vacancy for the purpose of Regulation 10 of the Maternity and Parental Leave Regulations 1999.
Background
Regulation 10 of the Maternity and Parental Leave Regulations 1999 (Regulation 10) is engaged where an employee who is pregnant or on maternity leave, or who has recently returned from such leave (the protected period), would otherwise be made redundant. In that situation, under Regulation 10(2), the employee is entitled to be offered alternative employment under a new contract of employment, which takes effect immediately on the ending of the employment under the previous contact. That entitlement effectively gives the employee priority over other employees who are at risk of redundancy. It arises only where there is a suitable alternative vacancy. Equivalent protection exists under other regulations for employees who are on or have recently returned from adoption or shared parental leave.
Facts
Carnival PLC operates cruise lines including Cunard and P&O. Ms Hunter was one of 21 team leaders working across the business. She became pregnant and began her maternity leave on 6 April 2020. The COVID-19 pandemic had an immediate effect on the cruise ship industry, and on 29 April 2020 Carnival notified its employees that there would be a wide-ranging redundancy exercise. Ms Hunter, together with the other team leaders, was formally placed at risk of redundancy. The 21 team leader posts were reduced to 16, with Ms Hunter being one of five team leaders who were selected for redundancy based on the scores which were applied to them in the redundancy exercise. She brought successful claims in the employment tribunal for unfair dismissal, automatic unfair dismissal and for breach of Regulation 10. This alert is mainly concerned with the Regulation 10 arguments.
The employment tribunal held that the 16 remaining team leader roles amounted to suitable alternative vacancies within the meaning of Regulation 10. As Ms Hunter had not been offered one of these roles before being made redundant, Carnival had not complied with that Regulation. At the same time, the tribunal held that the redundancy exercise was one in which there was a reduction of the total number of individuals holding the same roles and not one where there was an amalgamation of roles resulting in any newly created position(s).
The EAT quashed the tribunal's decision. It found that the tribunal had misapplied the law in respect of Regulation 10. Earlier case law had established that pre-existing posts cannot constitute a suitable alternative vacancy which Ms Hunter would have been entitled to have been offered. This was different from the situation where two roles ceased to exist and a new vacancy arose as part of a reorganisation. In Ms Hunter's case there were no new roles created so Regulation 10 did not apply, and there was no evidence heard about any other vacancies being available. The EAT also clarified that Regulation 10 is engaged once the selection process for redundancy has taken place and not at the earlier point when employees are placed at risk of redundancy. Regulation 10 does not override a valid selection process and require that an employee in a protected period, who scored lower than others, take precedence over someone who would otherwise have retained their job following the scoring exercise.
Among other points in respect of the unfair dismissal claims, the EAT considered the tribunal had failed to explain how the flaws which it identified would have altered Ms Hunter's ranking and selection for redundancy. The case was remitted to a fresh tribunal for rehearing.
What this means for employers
This case gives welcome guidance that Regulation 10 does not apply to roles in a reorganisation that are reduced in number. By contrast, where new roles are created these may constitute a suitable alternative vacancy which must be offered to those who are pregnant or on maternity leave, or who have recently returned from such leave and who are selected for redundancy.
