What is a suitable alternative job?

“What do you mean I should have given her the job?”

Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 is a hidden mine that catches so many employers unawares. It means that an employee on maternity leave takes precedence in a redundancy situation over all other employees when it comes to filling a suitable alternative vacancy. An employer is required to offer her the job without interview, assessment or other selection process. In this case the EAT confirmed that for a role to fall within Reg 10 it must be suitable and appropriate in the circumstances and the terms and conditions must not be substantially less favourable than an employee’s her existing contract.

Mrs S was an insurance consultant with E and was put at risk of redundancy whilst on maternity leave. She had been included in the consultation process and she had been sent a list of alternative vacancies. E had guaranteed that all insurance consultants could have a job in one of its new call centres and had sent Mrs S a list of vacancies. None of these were close to where she had been working and she showed no interest in any of them despite raising a lengthy grievance.

She brought a claim for automatic unfair dismissal arguing that E should have offered her one of the roles, rather than just sending her a list of vacancies. The EAT disagreed with her and found that E was entitled to decide that, taking into account Mrs S’s location and the location of the new roles, the new terms were substantially less favourable and that there was no obligation on them to offer the role. Employers would still be advised to err on the side of caution if only to avoid becoming embroiled in lengthy and expensive litigation. If at all possible, an offer should be made leaving it up to the employee to reject it. (Simpson v Endsleigh Insurance Services Ltd and others)