The tricky interplay of redundancies and maternity leave

The EAT has provided helpful clarity on the application of reg 10 of the Maternity and Parental Leave Regulations 1999 in the recent case of Hunter v Carnival plc.   In this case, Carnival plc were reducing numbers of team leaders, from 21 to 16.  The Claimant, Ms Hunter, was a team leader and she was on maternity leave at the time of the redundancy.  Based on a scoring exercise, Ms Hunter was one of the 5 selected for redundancy and subsequently made redundant.

At the Employment Tribunal, her claim for unfair dismissal and maternity discrimination was upheld on the basis that the remaining 16 team leaders roles constituted suitable alternative vacancies as per Reg 10(2).  Reg 10 applies in redundancy exercises to employees on ordinary or additional maternity leave and provides that where there is a suitable available vacancy, they must be offered it.  The ET held that Ms Hunter should have been offered one of the team leader vacancies after she was selected for redundancy.

However, the EAT disagreed and concluded that the 16 team leader roles were not vacant and so did not amount to suitable alternative vacancies. The EAT found that the ET has erred in the application of the case Sefton Borough Council v Wainwright. In this case, two employees’ roles were redundant and a new role was created which they were required to compete for. In this situation where a new role is created, Reg 10(2) would apply because it would be a vacancy and therefore the employee who was on maternity leave should be appointed to the role without competition. This type of case can be distinguished from the Scenario of Hunter v Carnival where the number of roles were diminishing and no new roles were created.

Managing the legal framework around redundancies and employees who are pregnant and/or maternity leave can be tricky and requires careful consideration and sensitive management of all those involved.