When is a vacancy not a vacancy? When there was never a vacancy! Understanding redundancy protections during maternity leave

The case of Carnival Plc (ta Carnival UK) v Ms Laura Hunter in the Employment Appeal Tribunal provides some clarity on the interaction between the Maternity and Parental Leave etc Regulations 1999 (the MAPLE Regulations) and redundancy. In highlighting the key takeaways from this case, we also consider the recent extension of the MAPLE Regulations and the need to bear this in mind when approaching any redundancy process. Further, we touch on how the Employment Rights Bill looks to strengthen these and similar rights, and what it might mean for employers in the future.

Facts

Ms Hunter worked as a team leader at a contact centre for Carnival Plc (Carnival). She went on maternity leave towards the beginning of April 2020. Following the onset of the Covid-19 pandemic, Carnival undertook a redundancy process in late April 2020 whereby 21 team leaders would be reduced to 15 positions team leaders (though this later expanded to 16). These were not to be new amalgamated roles with different remits to the original roles, it was simply a reduction in the number of the same roles.

A redundancy process was followed whereby objective scoring was undertaken and the bottom five scorers would be made redundant. Ms Hunter fell within this bottom five and was notified that she would be made redundant.

Under regulation 10(2) of the MAPLE Regulations, where redundancy means it is not practicable for an employer to continue employing an employee under their existing contract of employment during statutory maternity leave, that person should be offered alternative employment with her employer where there is a suitable available vacancy. In effect, this gives employees on maternity leave priority for alternative vacancies over other employees who are also at risk of redundancy. 

Ms Hunter asserted at the Tribunal, and the Tribunal accepted, that she should have been offered one of the 16 roles available on the basis of the MAPLE Regulations (not merely invited to interview for or compete for the role, but offered it outright). The Tribunal therefore found that she had been automatically unfairly dismissed on the basis that the MAPLE Regulations had been breached. Part of the reasoning was that the redundancy process automatically meant that all 16 available positions were ‘vacant’ once the process started: all 21 team leaders were effectively redundant and were competing for one of these spots. Because these vacancies had arisen, Ms Hunter was entitled to one of them.

Appeal

It was disputed by Carnival that the 16 available roles were ever "vacant". This was not a case where all the roles had been made redundant and new roles created by, for example, merging or altering the roles in anyway. Instead, the process was deciding who should be made redundant. It was only after the outcome of the process that anyone would be redundant. As such, there was never any vacancy that could be offered to Ms Hunter. The Appeal Tribunal endorsed this view, finding that “there were no new roles created and Regulation 10 could not have been in play until after the redundancy process had been completed … it [is] only after an employee’s position is redundant that the obligation under Regulation 10 arises.”

Extension of the MAPLE Regulations

Whilst this case applies the MAPLE Regulations to an employee on maternity leave, it is important to note that the Regulations apply in the same way to those on adoption leave or shared parental leave. These protections under the Regulations were extended in April 2024, as we discussed in our April update here. In pregnancy cases, the relevant protections now apply to an employee from the point the employer is notified that the employee is pregnant, throughout the pregnancy and for a period of 18 months from the date of birth.  These protections, therefore, may well benefit an employee for a significant period of time after they have returned to work.

Employment Rights Bill 2024

As we discussed here, the Government’s Employment Rights Bill (the Bill), published in October 2024, also addresses protections for employees on long-term family leave. The Bill, once implemented, will make it unlawful to dismiss a pregnant worker within six months of their return to work, except in specific circumstances. Additionally, the right to paternity leave and unpaid parental leave will become rights from the first day of employment, with the Bill removing any qualifying service requirement.

Conclusion

When undertaking a redundancy process it is vital to consider whether the roles which will be filled at the end of the process already exist, or whether new roles will be created which employees will have to compete for. This, the Tribunal found in Carnival, is a key point in determining whether an employee is protected by the MAPLE regulations and should be automatically offered one of the roles as part of the process. In summary:

• If the job roles are staying the same and the process will decide which roles will become redundant, the protected employee will not be entitled to be offered one of these roles.
• If distinct new roles are being created (by merging roles or changing the responsibilities) which the employees must apply and compete for, any employee protected by the MAPLE Regulations should be offered one of those roles if it is suitable alternative employment.

Following the April extensions to the protection under the MAPLE Regulations, it will be especially important to ensure that any employees falling under this protection are identified early on in any redundancy process to properly consider whether anyone ought to be offered any vacancies arising from the restructuring. This will include employees who have already returned to work following any leave, who are still covered by the MAPLE Regulations.

Greater protections for those on long-term family leave are proposed under the Employment Rights Bill, but the Bill is of course only the start of the legislative process. As the Bill passes through Parliament there will likely be amendments and changes, so watch this space.

With thanks to James Davies, trainee in the Employment team.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2024