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Clearing up the case for redundancy during maternity leave

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A tribunal has ruled that redundancy during maternity leave does not automatically mean unfair dismissal, but employers have been warned that this is not a green light for change. Many employers assume that they cannot make an employee redundant during maternity leave, but the recent case of Simpson v Endsleigh Insurance Services Ltd has thrown new light on the interpretation of the regulations. The case has clarified the employer's 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. Endlseigh 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. "Whilst this is a useful clarification of the law, it's 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," said employment law expert Alex Dean of Gepp & Sons Solicitors in Chelmsford. "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) • For additional information please contact: Alexandra Dean of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.