Answer by Laura Livingstone

Thank you for your question. Under employment law an organisation can dismiss an employee who is on maternity leave by reason of redundancy. However, to do so they first need to show that there was no suitable alternative position for that employee.

If your organisation fails to fulfil its obligations to you as an employee on maternity leave, it may open itself up to (1) an unfair dismissal claim or (2) a pregnancy or maternity discrimination claim. You state that your organisation is in the process of a re-organisation and that no-one has yet been made redundant but are at the stage of interviewing for the new roles.

Returning from maternity leave
Generally after coming back from Ordinary Maternity Leave, you are entitled to return to the ‘same job’ in which you were employed before your absence. The terms of employment must be the same or not less favourable than they would have been if you had not been absent (Reg. 18A(1)(b) MPL Regulations). When returning from Additional Maternity Leave, there is slightly more flexibility for an employer and you are entitled to return to either the same job or a different job which is both suitable for you and appropriate in the circumstances (Reg. 18(2) MPL Regulations).

The general position set out above is slightly altered when a re-structure and redundancy situation has arisen, as it is often not reasonably practicable for a woman returning from maternity leave to go back to the same job (as such a job may not exist). Therefore, the employer only needs to offer you a new position if there is a suitable vacancy available.

Suitable alternative vacancy
Following a re-structure, a woman returning from maternity leave should be offered a suitable alternative vacancy at the organisation if it exists, and the role should start immediately after the existing contract ends (regulation 10, MPL Regulations).

A vacancy will only qualify as a suitable alternative vacancy where:-

- The work to be done is both suitable and appropriate for her in the circumstances (Reg. 10(3)(a) MPL Regulations); and
- The capacity and place in which she will be employed, and the other terms and conditions of your employment, are no less favourable than if she had continued to be employed in her old job (Reg. 10(3)(b), MPL Regulations).

In recent case law (Simpson v Endsleigh Insurance Services Ltd and others UKEAT/0544/09), the Employment Appeal Tribunal held that to qualify as a suitable alternative vacancy the new position needs to satisfy both of the above limbs. Therefore, if all of the roles that are available following the restructure are based in Nottingham rather than London, an employer is not obliged to consider you for the position as the location of the role would be less favourable than your old role.

Having said that, if no other alternative is available it would be best practice to allow you to apply for other roles even if they might not be “suitable”. Your email mentions that you have been asked to interview for a position which is ‘larger’ and ‘has a greater level of pay’. My concerns here are that this sounds like a higher level job than the one you previously held. If so, your organisation may well argue that this is not a suitable alternative vacancy for you and so they do not need to offer it to you. Instead their approach of interviewing you with others would be the right approach. This is unless the ‘higher level’ role has deliberately been created to ensure you will not get that role.

I suggest that you look around the re-structured roles and see if there are any roles that would be similar to your old job. If so, you will certainly have priority to those positions over other employees who are also at risk of redundancy. This is a rare example of lawful positive discrimination. If you can show that there is a position which is a suitable alternative vacancy, and your employer does not comply with their obligations, you will have a claim for automatically unfair dismissal under section 99 of ERA 1996 (regulation 20(1), MPL Regulations) and, arguably, pregnancy and maternity discrimination which I have set out below.

You should also remember that if your employer does offer you a suitable alternative vacancy and you refuse, any consequential dismissal for redundancy is likely to be fair. Furthermore, if you unreasonably refuse the offer, you will also lose your right to a redundancy payment.

Redundancy
If your employer cannot offer a suitable alternative vacancy, your employer can include you in the redundancy pool, subject to the usual principles of fair and non-discriminatory selection. Unfair dismissal would be automatically unfair for your organisation to select you for redundancy if their reason (or principal reason) for selecting you is connected to your statutory maternity leave. It is also automatically unfair for your organisation to select you for redundancy during Ordinary Maternity Leave or Additional Maternity Leave for a reason connected to the fact that you have given birth. However, if their reason has nothing to do with your maternity leave this would not succeed.

Maternity discrimination
If you are not consulted or not adequately consulted about the restructure and potential redundancy because you are on maternity leave an employment tribunal may find that you have suffered a detriment and have therefore been discriminated against. A woman is protected against being subjected to a detriment for a reason connected to her statutory maternity leave.

Conclusion
The organisation can restructure and make you redundant but if they do your employer will importantly need to show two things:

1. that there is a genuine redundancy situation and the higher level role needed to be created;
2. that the process followed was generally fair;
3. that there was NO suitable alternative vacancy available and if there is you should be given priority; and
4. that the reason that YOU were chosen for redundancy is NOT connected to your pregnancy, childbirth or maternity leave.

I hope you find this information of assistance.

Laura Livingstone is an employment lawyer for Davenport Lyons in London. Her practice focuses on contentious and non-contentious employment work, but she leans towards the non-contentious. She has advised a wide variety of corporate clients in all areas of employment. Her colleague Charlotte Mepham helped in the preparation of this answer.