In the recent Employment Appeal Tribunal (EAT) case of Carnival PLC v Hunter, the EAT considered the obligation on employers to offer any suitable available vacancies to employees on maternity leave in the context of a redundancy.
The right to be offered suitable available vacancy
Employees who are pregnant or have given birth have additional protection during a redundancy process, which gives them priority over suitable available vacancies. Usually, this period of protection starts from when the employee notifies their employer of their pregnancy, and ends 18 months after the birth.
The facts
Ms Hunter, an employee of Carnival PLC, commenced maternity leave shortly before Carnival announced it would be undertaking a redundancy exercise. Ms Hunter was informed she was at risk of redundancy, along with 21 other team leaders. The redundancy exercise culminated in Ms Hunter being informed that she would be made redundant, following a scoring exercise in which she scored amongst the lowest of the other team leaders at risk. Following the redundancies, there were 16 team leaders left at Carnival.
Following her dismissal, Ms Hunter brought various claims against Carnival, including automatic unfair dismissal and maternity discrimination. The basis of Ms Hunter's claims was that Carnival had not met its obligation to offer her suitable available employment in accordance with its obligations. This argument arose from the fact that there were 16 remaining team leader positions, one of which, Ms Hunter argued, should have been offered to her as an alternative to redundancy.
Tribunal decision
The initial Employment Tribunal found in favour of Ms Hunter, stating that Carnival had not met its obligation to offer her any of the suitable available roles.
Carnival appealed and the EAT overturned the decision. The EAT clarified that the remaining team leader roles, already filled by other employees before Ms Hunter's employment ended, did not constitute "suitable available employment". Carnival had undergone a scoring exercise and found Ms Hunter to be amongst the lowest scorers. As such, there was no obligation to "bump" Ms Hunter into a role which would otherwise be reserved for an employee who had scored higher during the scoring process. This was the case because there was a reduction of the headcount in a particular role.
This finding is likely to have been different if there had been an amalgamation of roles, resulting in newly created positions. In this instance, it is likely the amalgamated role would constitute suitable available employment.
Comment
The duty to offer suitable alternative employment as an alternative to redundancy does not override a valid scoring exercise undertaken by the employer. This means that, where there is a reduction in headcount of a specific role, there is no obligation to bump the employee into another role where the protected employee has scored lower than the rest of the employees in the pool.
This judgment gives rise to a number of key practical takeaway points for employers when facing similar situations:
Fair selection process: Ensure that the redundancy selection processes are fair and transparent. Employees on maternity leave should be included in the selection pool and assessed based on objective scoring criteria.
Suitable available employment: Employers must offer any suitable available vacancies to protected employees before making them redundant. However, this obligation does not extend to creating new roles, or displacing other employees who have been fairly scored as safe from redundancy.
Clear communication: Maintain clear and open communication with employees on maternity leave about any potential redundancies and any available roles. This assists in managing expectations.
Chelsea Feeney