Maternity Protection
Daniel Barnett
I represent businesses in high-stakes employment litigation and invest in HR consultancies. I am a presenter on LBC Radio, qualified as a barrister, and train lawyers & HR Professionals in employment law.
Summary:?Suitable Alternative Employment
In?Hunter v Carnival plc ?the Employment Appeal Tribunal looked at the protection provided by regulation 10?of the?Maternity and Parental Leave Regulations 1999?and whether it should ‘bite’ to keep an employee in role where the number of roles was reducing but not disappearing completely.
The Claimant was on maternity leave when a redundancy exercise took place in which 21 team leader posts were reduced to 16. She was selected and was made redundant. She brought claims of unfair dismissal and maternity discrimination.
The employment tribunal, upholding her claims, held that the 16 team leader roles remaining, following the removal of five roles, amounted to suitable alternative vacancies within the meaning of regulation 10 and the Claimant should have been retained in one of them.
The EAT disagreed. Under regulation 10(2), “Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contact) alternative employment”. In this case, the tribunal had been wrong to find there was a ‘vacancy’. By the time she had been selected for redundancy, there?was?no vacancy because the remaining 16 roles were not vacant. The EAT distinguished the position where two roles are being amalgamated into one different role, because that?would?be a new vacancy.
Developing
1 周This is a very interesting case. I think most would assume Reg 10 is as per the ET not the EAT. I’ll be interested to see if this progresses further.
Independent HR Consultant | HR Projects | Leadership Development | Workplace disputes & investigations | Team restructures | Generalist HR advice and support.
4 周Thank you for sharing this interesting case Daniel. So if I understand correctly, Regulation 10 does not grant priority to employees returning from maternity leave if they score low in a fair selection process. It does not provide enhanced rights to override the selection outcome?