Maternity leavers and the right to be offered a suitable alternative vacancy in redundancy situations

Employers often grapple with the concept that those on maternity leave get preferential treatment in redundancy situations in that they must be given first right of refusal for suitable vacancies, even if they are not the best candidate for the job. At the back end of 2014, the EAT made a ruling in Wainwright v Sefton Borough Council dealing with the point at which this obligation is triggered. Is it when the woman has been selected for redundancy, or when she returns from maternity leave? Or is it at the earlier point when the woman is put “at risk” of redundancy?

The EAT opted for the earliest point in the process, eg when a woman on maternity leave is “potentially redundant”. In practice this means the obligation is triggered at the “at risk” point.

The EAT also clarified that

• in a reorganisation, any newly created role is likely to be deemed a vacancy
• a breach of the obligation to offer a woman a suitable alternative vacancy is not an automatic breach of maternity discrimination.

Action points

• Employees on maternity leave should be offered a suitable alternative vacancy at the start of the redundancy process.
• If the standard practice is to wait for the employee to return from maternity leave until the search for suitable alternative roles begins, the employee’s express consent should be sought.
• In a restructuring, the roles created as part of the restructure will constitute “vacancies” if they differ from the employees’ current roles and, if suitable, should be offered to employees on maternity leave.
• The duty is to offer a suitable vacancy, not a specific role. The employer can adhere to this through offering any suitable vacancy (ie it does not have to be a vacancy that the employee wants).
• Even though a breach of this obligation is not automatically discrimatory, it will often lead to a difficulty in defending the corresponding discrimination claim.
• This decision will also be applicable to both men and women taking shared parental leave from 6 April 2015 as there are equivalent provisions on suitable alternative vacancies in the Shared Parental Leave Regulations 2014.
• Review and update policies, guidance notes and processes.
• Communicate any changes to all ER and HR practitioners as well as business partners involved in redundancies and restructuring.