Redundancy, maternity and suitable alternative vacancies

Navigating the complexities of employment law can be particularly challenging when it overlaps with sensitive issues such as redundancy during maternity leave. This article highlights the legal intricacies and ethical considerations employers must navigate in such scenarios. By examining the legal framework governing maternity leave and redundancy, we aim to shed light on the rights and protections afforded to employees, as well as the obligations and best practices for employers.

Redundancy during maternity leave: Employment law considerations

Q:  We have just put a team of 20 factory line operators at risk of redundancy as we need to reduce numbers to 15.  Do we need to give one of the 15 remaining roles to [Operator A] who is on maternity leave?

A: In short, no.

Regulation 10 of the Maternity and Parental Leave Regulations 1999 (‘Reg 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 have also been selected for 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.

Regulation 10 is engaged once the selection process for redundancy has taken place and not at the point this business is at – where the whole team has been put ‘at risk’ of redundancy.  We do not yet know that Operator A will even be selected for redundancy.

Further, a remaining, existing role in a reorganisation is not a suitable alternative vacancy for the purpose of Regulation 10 of the Maternity and Parental Leave Regulations 1999 (Carnival Plc (t/a Carnival UK) v Hunter, [2024] EAT 167).  Even if Operator A is one of the 5 selected for redundancy, the business would not be expected to give one of the 15 remaining roles to Operator A as those roles are already occupied.

A fair selection process should be held to determine which 5 team members are selected for redundancy and then consideration should be given to whether any suitable alternative vacancies exist across the whole organisation, including any associated employers.  If Operator A is one of the 5 selected for redundancy, and if there is a suitable alternative vacancy, Operator A will have priority over the other 4 (assuming none of them also have priority).  In these circumstances Operator A should be offered the alternative employment under a new contract of employment, to take effect immediately on the ending of the employment under the previous contact.

It is important to note that this query related to a reduction in roles situation as part of a reorganisation.  It would be different if roles ceased to exist and new vacancies had arisen as a result of reorganisation. Where new positions are created these may constitute suitable alternative vacancies which must be offered to those who are selected for redundancy and who are pregnant or on maternity leave, or who have recently returned from such leave.

Further guidance and support

The issues discussed above can be tricky to navigate and very costly if mishandled. Our Employment team are based in Maidstone and Canterbury. We recommend getting in touch at an early stage to get advice.

You can call us on 01622 690691 or book a free 30-minute online appointment with one of our team to discuss how we can help you.

This content is correct at time of publication