In this case, the Employment Appeal Tribunal (“EAT”) has confirmed the limitations on what can constitute a “suitable alternative vacancy” in a redundancy situation, in the context of the obligation to offer such vacancies to those on certain forms of statutory family leave.
The Claimant was one of 21 team leaders working across the Respondent’s business. Whilst the Claimant was on maternity leave in 2020, the Respondent undertook a redundancy exercise to reduce the number of team leader roles to 16 due to the immediate impact of COVID on the Respondent’s industry. The redundancy selection exercise was conducted using a scoring system, with the five lowest scorers being made redundant. The Claimant was made redundant, and she subsequently claimed unfair dismissal and maternity discrimination.
In the Employment Tribunal (“ET”), the Claimant’s claims were upheld, with the ET deciding that the remaining 16 team leader roles constituted suitable alternative vacancies. The ET held that the Claimant should therefore have been offered one of those roles, since she was on maternity leave at the time (and therefore benefitted from the legal right to be offered a suitable alternative role, where one was available). As a result, the ET made a finding of automatic unfair dismissal. In the alternative, the ET found that the dismissal was unfair due to unfairness in the Respondent’s scoring process.
On appeal, the EAT disagreed with the ET, stating that the remaining 16 team leader roles were not “vacancies”. The EAT distinguished this from a situation where two roles were merged, with the merged role being a new and different role and therefore a vacancy. In this case, there was no such merger. It was a “conventional redundancy” with a simple reduction in headcount. At no point in the process was there a vacant role. The EAT also noted that the ET had substituted the Respondent’s findings in the scoring process with its own without proper justification for that substitution.
This case clarifies that where employers are simply reducing the number of existing roles during a redundancy exercise, there is no requirement to offer one of the remaining roles as a suitable alternative vacancy, as these are not vacancies. The obligation will only arise when an employer is amalgamating two roles, which would create a “vacancy” that should be offered if it is a suitable alternative, or where there are other genuine vacancies in the employer’s business which are suitable alternatives to the redundant employee’s role. This is now particularly important, given the recent widening of this redundancy protection to pregnant employees and those who are on or recently returned from maternity, adoption or shared parental leave.