17 September 2010 #Employment
Under the Maternity Regulations 1999, an employee who is on maternity leave is entitled to return to the ‘same job in which she was employed before her absence`.
If an employee`s job subsequently becomes redundant during her maternity leave period, the employee is entitled to be offered any suitable available vacancy that arises before her employment comes to end. Any dismissal in breach of the Regulations will automatically be unfair.
However, there are certain conditions to be satisfied before a vacancy is deemed to be a suitable alternative. These were considered in the case of Simpson v Endsleigh Insurance Services Ltd.
Ms Simpson was an insurance consultant based in London and her employer decided to close some of its offices and transfer the work to call centres in Cheltenham, Burnley and Northern Ireland. All insurance consultants were guaranteed a role in one of the new call centres if they were willing to relocate. Whilst on maternity leave, Ms Simpson expressed no interest in any of the vacancies in the new offices. No formal offer of alternative employment was subsequently offered to Ms Simpson in the new offices and she was dismissed by reason of redundancy. Ms Simpson subsequently made a claim for automatic unfair dismissal.
It was identified by the Tribunal that four vacancies (all based in Cheltenham) were potentially suitable for Ms Simpson. However, the Tribunal had found that she would not have relocated to Cheltenham in any event. Therefore whilst the work was considered suitable and appropriate for Ms Simpson to do in the circumstances (under regulation 10(3)(a)), its location in Cheltenham was substantially less favourable to her (under regulation 10(3)(b)) than if she had continued to work in London under her previous contract. The Tribunal also decided that both elements of the statutory test should be considered together.
None of the four vacancies in Cheltenham were therefore suitable alternatives and the Tribunal held the employer was not obliged to offer the alternative roles to Ms Simpson. Her claim was subsequently dismissed.
This case is also significant as the EAT decided that in determining whether a vacancy is suitable for an employee in Ms Simpson`s circumstances, both limbs of regulations 10(3)(a) and 10(3)(b) should be read together.