Redundancy and Maternity Leave Considerations

08 December 2014

Maxine Orr, Solicitor, advises on the special protection afforded to employees who are on maternity leave under the Maternity and Parental Leave Regulations (Northern Ireland) 1999

Employees who are on maternity leave have special protection under the Maternity and Parental Leave Regulations (Northern Ireland) 1999.  In the event of a redundancy, where there is a suitable available vacancy, the employee is entitled to be offered alternative employment, providing it is both suitable and appropriate and the capacity and place in which she is to be employed together with the terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract. A recent case in the Employment Appeal Tribunal in England considered the practical implication of this provision and will remind employers of the difficulties in a restructuring process.

Ms Wainwright was employed as Head of Overview and Scrutiny with Sefton Borough Council.The Council was forced to make redundancies due to budget cuts and restructuring.Ms Wainwright’s role was being selected for redundancy however a new post – Democratic Service Manager was created which combined her role and that of Head of Member Services –a post held by Mr Steve Pierce. This occurred whilst Ms Wainwright was on maternity leave. Both were suitable for the new role and the employer interviewed both candidates as a means of selection. Mr Piece was deemed the better candidate and he was offered the new role. Ms Wainwright was made redundant and she issued proceedings in the Tribunal.

The Employment Tribunal stated that Regulation 10 gave rise to an absolute right. Where there is a suitable vacancy it must be offered to the employee on maternity leave, a failure to do so renders the subsequent dismissal automatically unfair.Further, Regulation 10 required that the employee on maternity leave should be offered the suitable vacancy when it was available; not simply the opportunity to apply for it.Since Ms Wainwright’s post was no longer available in July 2012 and there was a suitable vacancy at that time – the Democratic Service Manager role, she should have been offered it without competition.

The Council appealed, arguing that the Employment Tribunal went further than was necessary to protect the employee’s interests and this approach would give rise to unfairness to Mr Pierce, it contended that regulation 10 should only provide protection when the employee was in the redeployment pool.

The Employment Appeal Tribunal upheld the decision stating that “If the Respondent had, as a matter of fact, offered the Claimant a suitable vacancy other than the Democratic Service Manager role it might well have complied with its regulation 10 obligation”. It went on to say that “the Respondent might not have wanted to give the Democratic Service Manager role to the Claimant in preference to Mr Pierce, but in my judgement it was obliged to do so unless it was in a position to offer the Claimant some other suitable available vacancy”.

On the particular facts of this case, the employer did not offer Ms Wainwright any other roles within the organisation which seems to have been a key fact in the tribunal’s decision. Employer’s in a restructuring or redundancy situation should avail of professional legal advice to avoid costly and lengthy employment claims.

Maxine Orr is a Partner in Worthingtons Commercial Solicitors in Belfast, specialising in Employment Law.

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