Maternity and redundancy - a little reminder
07/10/2010
By Nick Hobden, Partner and Head of Employment
No doubt you will all be aware of the protected status afforded to pregnant employees and those on maternity leave. Employers are rightly cautious to ensure that they comply with the law when, for example, a redundancy situation arises in relation to a pregnant employee. However it is often assumed that women who are either pregnant or on maternity leave cannot lawfully be dismissed by reason of redundancy. This is not true, as the case of Simpson v Endsleigh Insurance Services Ltd and others proves.
The facts
Ms Simpson worked for Endsleigh in one of its London retail outlets. Whilst she was on maternity leave, Endsleigh decided to close down a number of its shops and transfer operations to a small number of call centres dotted around the country. Along with all other absent employees, Ms Simpson was invited to a meeting to discuss the situation and was invited to apply for any alternative employment in which she was interested. Indeed she was guaranteed a job at one of the new call centres, if she wished to take up the opportunity.
Having shown little interest in any of the alternative employment on offer, Ms Simpson was dismissed by reason of redundancy. She then brought an unfair dismissal claim against Endsleigh. She alleged that the dismissal was automatically unfair, in that the company had failed to comply with its obligation to offer her any suitable alternative employment that it had available. This is normally required when a woman is made redundant whilst on maternity leave. Issues arose as to what alternative employment was available and whether it should have automatically been offered to Ms Simpson.
The decision
The Employment Tribunal (ET) considered the law relating to the obligation to offer women on maternity leave suitable alternative employment ahead of any other employees. It noted that the obligation arises where:
- the role in question is suitable and appropriate and
- the other terms and conditions are not substantially less favourable.
There were some roles in Cheltenham that might have been appropriate. But the ET concluded that because the location of these roles was a good distance from Ms Simpson's existing job in London, this represented a less favourable term of employment. Therefore, Endsleigh was not required to offer the employee these jobs.
Ms Simpson appealed to the Employment Appeal Tribunal (EAT), but her appeal failed. Interestingly, despite arguments to the contrary, the EAT decided that the ET had been entitled to conclude that Ms Simpson would not have been prepared to relocate to Cheltenham. The ET had relied upon the fact that Ms Simpson had not applied for any of the Cheltenham vacancies about which she had received information. She had only shown an interest in a London job which, in the end, turned out to be unsuitable.
Conclusion
In this case, Endsleigh had a slightly lucky escape. With the great benefit of hindsight, the company might have done more to discuss with Ms Simpson the potential roles available and document her responses. This would have made it easier to prove that she was not interested in the various vacancies on offer.
However what is interesting about this case is the extent to which the EAT concluded that it was for the employer to decide what is suitable alternative employment for the employee, based upon its knowledge of the person. This is an objective exercise, rather than one that extensively considers the views of the employee. Having said that, careful consideration should always be given to such issues to manage risk.