Posted on 3rd November 2010

Maternity Case Favours Employers, but it isn't a Green Light

Nick Poole, Partner at Latimer Hinks SolicitorsLatimer Hinks Solicitors, one of Darlington and County Durhams longest established law firms, is giving a timely warning that maternity leave will not automatically save women from redundancy.

As the reality of cuts starts to take shape, following the comprehensive spending review (CSR), a recent tribunal case has clarified that redundancy of an individual on maternity leave does not automatically mean unfair dismissal.

Nick Poole, Partner at Latimer Hinks, warned that while the case of Simpson v Endsleigh Insurance Services Ltd fell in favour of the employer, it is not a green light for change.

Many employers assume that they cannot make an employee redundant during maternity leave, but this case has thrown new light on the interpretation of the regulations.

The case has clarified the employers duties under Regulation 10 of the Maternity and Parental Leave Regulations 1999. This states that if the job of a woman who is on maternity leave becomes redundant, the employer must offer the employee a suitable alternative vacancy, provided that the work in the alternative job is suitable and appropriate for the woman.

Also, the terms and conditions of the new job, including the status and place of employment, must not be substantially less favourable to the employee.

The employer, Endsleigh, had closed down several branch offices while Ms Simpson was on maternity leave. They invited her to apply for a job in the Cheltenham branch but she did not do so.

She later argued before the Employment Appeals Tribunal (EAT) that she should have been offered the job in Cheltenham, not just invited to apply. Endsleigh argued that the job in Cheltenham would have meant relocation or commuting for Ms Simpson and therefore it was substantially less favourable to her.

Therefore, the company argued, as both conditions in Regulation 10 had not been fulfilled, the duty to offer the alternative job did not apply.

In this case, the Tribunal agreed with Endsleigh and also said that it was for the employer, not the employee, to decide whether the alternative job was less favourable to the employee.

Nick Poole said: "Whilst this is a useful clarification of the law, its not a green light for anything that will undermine the rights of women on maternity leave. Employers need to be very careful in considering whether the terms of alternative employment are suitable to the employee and whether terms are more or less favourable.

"They must make sure they act objectively and in good faith in reaching their decision and record their reasons carefully, as they may well be open to scrutiny if there is subsequent action by the employee.

Reference: Simpson v Endsleigh Insurance Services and others (UKEAT / 0544/09/DA)