The Employment Appeal Tribunal (EAT) has confirmed that, in cases where there is a risk of redundancy (i.e. an employee has not yet been selected for redundancy), Regulation 10(2) of the Maternity and Paternal Leave etc. Regulations 1999 (Regulation 10) does not automatically protect employees on maternity leave from redundancy.

Case facts

In Carnival plc v. Hunter, Ms Hunter, who was one of 21 team leaders at a contact centre for a cruise line operator, went on maternity leave in April 2020. Later that month, Carnival notified employees they would be conducting a redundancy exercise due to the Covid-19 pandemic. They formally placed all team leaders at risk of redundancy and Carnival ultimately made Ms Hunter redundant along with four other team leaders. Ms Hunter brought a claim for unfair dismissal.

Employment Tribunal decision

The Employment Tribunal (ET) initially found that Carnival had unfairly automatically dismissed Ms Hunter, as there were 16 posts remaining following the redundancy exercise that were suitable alternative positions. It found that Carnival should have offered Ms Hunter one of those 16 posts.

Employment Appeal Tribunal decision

Upon appeal, the EAT found that the ET had erred in concluding there was a suitable alternative vacancy as the posts existed before the redundancy exercise. The posts were not vacant.

At the outset of the consultation, the claimant was at risk of redundancy. However, her role was not redundant until Carnival had scored all the team leaders. A person who is eligible for Regulation 10 protection but scores lower than others cannot displace someone who scores higher and would otherwise retain their role post-redundancy. It was only at the point that Ms Hunter had scored lower than the other team leaders that her role was made redundant and Regulation 10 protection kicked in, but there was not a suitable alternative vacancy. As a result, the EAT quashed the finding of automatic unfair dismissal.

Key takeaways for employers

Employers must generally offer a suitable vacancy, if one exists, to an employee on maternity leave whose role it has confirmed as redundant. This principle also applies to those who are pregnant or on adoption or shared parental leave. The protected period covers the duration of the family leave (and pregnancy from when the employee notifies their employer), as well as a period after return from one of these types of leave (generally 18 months after the child's birth or adoption placement, subject to taking a minimum of six consecutive weeks' leave in the case of shared parental leave). This protection arises only if there is a suitable alternative vacancy. The new employment contract must:

• ensure that the alternative work is suitable for the employee;
• be appropriate in the circumstances; and
• not be substantially less favourable to the employee in respect of the role, location and other terms and conditions.

Whilst employers might instinctively feel they should protect a pregnant employee, or an employee on maternity (or other family leave), by exempting them from selection, this could amount to sex discrimination against male employees in the selection pool.

Instead, this case confirms that if you are dealing with a reduction in the number of employees carrying out a particular role, Regulation 10 protection does not apply until you have carried out the scoring exercise. If an employee who is in the protected period is amongst those who scored lowest, then at that point (and not before) Regulation 10 kicks in to give them priority for any suitable alternative vacancy that exists.

If all roles within the employee group are disappearing with new, different positions being created, then Regulation 10 would kick in to give an employee who is in the protected period priority for one of the new positions if it is a suitable alternative vacancy.