/>iSo now we finally have a definitive answer to the question of whether being on maternity leave at the time redundancies are declared gives you priority in the selection process. That answer is no. And yes. As we can say entirely definitively, it all depends.
Let us take two scenarios.
In the first, the employer operates a cadre of team leaders, some 20 all told, and decides that it needs only 15 of them due to a sharp drop-off in business volumes. Those 15 will be doing the same team leader jobs as before, their own jobs in effect, plus maybe some peripheral bits and pieces inherited from the five who are leaving. The employer applies some selection criteria and dismisses the five lowest scorers for redundancy.
In the second scenario, the employer is planning a major shake-up of the team leader function, reducing them still from 20 to 15 but where the remaining roles will be materially different from what went before. Because there are such differences the employer decides in effect to start again, to scrub all the existing roles and then encourage the potentially displaced team leaders to apply (and if necessary, compete) for one or more of the new positions – what is sometimes rather brutally referred to as a “spill-and-fill”. The five or more employees who miss out in this particular game of musical chairs are then made redundant.
In each case, one of the unlucky five is on maternity leave. On seeking advice, she is referred to regulation 10 of the Maternity and Parental Leave Regulations 1999. This says, paraphrased, that where someone is unable to return to work from maternity leave by reason of redundancy, she is entitled to be offered any suitable alternative vacancy which there may then be within the wider business. “Entitled to be offered” means just that, not merely entitled to be interviewed for the role or entitled to it only so long as she is the best candidate or nobody else wants it. So in the two scenarios above, does regulation 10 save our heroine?
In the first, no, says the Employment Appeal Tribunal this month in Carnival Plc -v- Hunter. Even if all 20 team leaders are put at risk, that does not mean that their jobs are vacant – they are all still in them. In those circumstances, said the EAT without hesitation, “regulation 10 does not override a valid selection process requiring in effect a woman eligible for regulation 10 protection but who scored lower than others to bump [out] someone who would otherwise have retained his or her job following the reduction in roles by having scored higher”.
But in the second, all the shiny new roles arising from the reorganisation are vacant precisely because they are new – the team leaders are all in their old jobs until they find a perch in one of the new roles, but until that process is complete, those new roles are vacancies. Therefore the employee on maternity leave would be entitled to one of them even if that meant bumping out some internal or external candidate who was actually better qualified.
Therefore the employer needs to be very clear in its own head as to what it is doing in these cases – am I engaged in a conventional redundancy in which there is simply a reduction in existing roles with no vacancies arising? Alternatively, am I making such changes to existing roles that I am no longer sure which of the people I have at present is most suitable and therefore I am conducting what is in effect a recruitment exercise to determine who gets which. In the first case, regulation 10 won’t bite, and in the second, it will.
This distinction is going to become all the more important when the changes in the Employment Bill come into effect to extend the regulation 10 protection to a wider population of people on family-friendly leave, and in particular to make it apply not just during such leave but also for a further period after it, possibly six months. In a particularly glaring example of the fallacy of the Brexit promise to wrest back control of our own legislation from Europe, this is a measure lifted in large part untouched from German law, but maybe that’s not important right now.
Carnival also supplied a slightly helpful reminder of the approach which Employment Tribunals should take when kicking the tyres on redundancy selection exercises. While it is easy for an anxious employer to feel that the whole shooting-match may hang by a thread which can be snapped by a single careless score, the reality is rather less daunting. The ET found some evidence of subjectivity in Carnival’s approach (though did not identify how this had affected Ms Hunter’s scores) and ruled her dismissal unfair as a result. Perhaps shouting into the wind to some extent because there is no prospect of its stopping employees having a go, the EAT noted that “if a marking system is to function effectively, its workings are not to be scrutinised officiously, nor subjected to an over-minute analysis”. Leaving aside for another day the question of where one draws the line between minute and over-minute – they both seem pretty forensic to me — the clear message was that so long as the employer had made a good faith run at it, a redundancy scoring process could not be unpicked after the event by chipping away at individual scores. This is not however quite the licence it appears to be. The smaller the number of people at risk, the easier it will be to make attacks on relative scoring, and the closer the dismissed employee was to hanging on to their job, the more that will be seen as a valid exercise. Remember that in determining any compensation for an unfair redundancy dismissal, the ET must form a view as to whether the slips or rough edges alleged in the selection process actually made any difference. Keep in mind also that the EAT’s comment above was lifted from a case which was less about the propriety of individual scores and more about whether a large group of dismissed employees should be granted disclosure of the assessments for all the others involved in the same redundancy exercise. The prospect of sitting listening while 234 claimants crawled through the scores of some 6,500 of their more successful colleagues looking for things to disagree with was just too appalling for the Judge in that case to contemplate, but if there were a handful of possible comparators only, a stiffer view might be taken. Especially in cases where the potentially redundant employee is pregnant or on maternity leave or (coming soon) in that extended post-leave period, the burden will be very much on the employer to “show its workings” so as to best resist any suggestion she may make that those slips and rough edges were the product of conscious or unconscious discrimination.
