Restructuring: Maternity leavers always come top!.

A recent EAT decision has shed a sobering light on what employers need to consider in situations where two roles, including a maternity leaver’s existing role, are to be deleted from its structure and replaced by a single (newly created) position.

In the particular case, the claimant (who was on maternity leave) and the person who had occupied the other redundant position were put ‘at risk’ of redundancy and interviewed for the new role; it was found that the claimant’s colleague was the better candidate and was offered the job. No other vacancies were available or offered to the claimant and she was subsequently made redundant. She brought a claim for automatic unfair dismissal and maternity discrimination.

The duty to offer a suitable alternative vacancy to an employee on family-related leave arises as soon as the employer becomes aware that the individual’s role is redundant.  The employer in this case argued that the claimant was not “redundant” and therefore not entitled to be offered the suitable alternative vacancy until the decision had been taken as to who was the best candidate for the new role.

The EAT rejected this; the tribunal was entitled to conclude that there was a redundancy when the employer decided that two positions would be replaced by one, not after the redeployment exercise. Therefore it followed that once the employer was aware that the claimant’s role was redundant, they were under a duty to offer a suitable alternative vacancy. As that new position was a suitable alternative vacancy, it should have been offered to the claimant even where the other employee was a better candidate.

The EAT ruled that that role should have been offered to the employee on maternity leave without her having to compete for it. The employer would only have been able to appoint the better candidate to the new role if it had had another suitable vacancy it could have offered to the employee on maternity leave.

The failure to offer the new role to the claimant rendered the dismissal automatically unfair. The case was sent back to the tribunal to consider whether it was also unlawful maternity discrimination (which would require the reason for the treatment to be that the employee took maternity leave).

Note that a restructuring exercise of this type is different from a redundancy exercise involving a straightforward reduction in the number of employees doing a particular type of work. Had it been a simple case of reducing one or two roles, the employer could have selected by a using fair criteria and the employee on maternity leave would have had no right to preferential treatment in that selection process. Only once the selection had been completed would her role have been redundant and she would have had the right to be offered a suitable alternative vacancy.

Note that similar rights will be available to those who take shared parental leave.

(New case referred to Sefton Borough Council v Wainwright 2014)

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