Employers are required by law to offer suitable alternative vacancies to women on maternity leave who are under threat of redundancy before anyone else. However, in Simpson v Endsleigh Insurance Services Ltd, the Employment Appeal Tribunal (EAT) clarified that employers have to consider whether the role was suitable and appropriate in the circumstances and whether the location and the terms and conditions on offer were not substantially less favourable.
Ms Simpson, an insurance consultant, was on maternity leave when the company announced it would be closing its retail branches, including the one in London where she mainly worked.
She was sent correspondence about the consultation process, containing details of alternative vacancies for which she could apply. She was also guaranteed a job in a call centre, but only if she was willing to relocate to Cheltenham.
However, Ms Simpson had been ill and away from home for most of this period after a difficult birth and when she returned in July 2008, only skim read the paperwork that had been sent to her. She was made redundant in August 2008.
She lodged claims with the tribunal, including a claim that she had been automatically unfairly dismissed, arguing that her employer had failed to offer her a suitable vacancy in breach of regulation 10 of the Maternity and Paternity Leave etc Regulations 1999 (MPL regs).
The regulations state that if an employer cannot continue to employ someone on maternity leave, because of redundancy, they are required under section 10(2) to offer any “suitable available vacancy” before the woman’s existing contract runs out.
Regulation 10(3) states that the new contract must be such that:
“(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
(b) its provisions as to the capacity and place in which she is to be employed, and as to the other 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”.
The tribunal agreed with the company that, although there were four vacancies that might have been suitable under regulation 10, they were based in Cheltenham and therefore not suitable for her in the circumstances as required under 10(3)(a) as she would have had to relocate. The Tribunal found as a fact that she did not want to relocate.
It also held that the new place of employment would amount to a “substantially less favourable term” and was therefore would not have satisfied 10(3)(b).
As the company was not in breach of the regulation, her unfair dismissal claim failed.
Ms Simpson appealed, arguing that as one of the Cheltenham jobs satisfied the requirements in section 10(3)(a), the company was obliged to actually offer her that post as opposed to just sending her information about it. She argued that it was only once the post had been offered that the employer/employee went on to look at the favourability or otherwise of the new terms and conditions.
The EAT upheld the tribunal decision saying that the suitability requirement set out in regulation 10(2) could only sensibly be tested when “coupled” with the requirement for a new contract which complies with regulation 10(3).
“To suggest that 10(3)(a) can be looked at, apart from Regulation 10(3)(b), seems to import a two-stage process into the regulation which is not apparent from its wording”. Instead both limbs of the test needed to be satisfied.
It said that the whole point of the law was to protect women on maternity leave in preference to other employees also facing redundancy. Hence the requirement in the law to provide a post that was no less favourable. The tribunal had also been right to decide that “at the end of the day it is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable”.
This case offers a helpful guide to the process that employers must go though when deciding whether or not a suitable alternative vacancy exists for a woman on maternity leave who would otherwise be made redundant. It was relevant that the claimant had shown no willingness to relocate to Cheltenham although she told the tribunal that she would have done so. The EAT confirmed that the question of suitability was a decision for the employer based on their objective assessment of the relevant facts which included what they knew about the claimant and her circumstances.