Redundancy while on maternity, shared parental or adoption leave rights: Ballerino -v- Racecourse Association Ltd
In our last Up Date we reported on the interesting case of Carnival PLC – v- Hunter which concerned the rights of employees on maternity (and shared parental and adoption) leave and the duties of employers managing such situations. Since 1999, when the Maternity and Parental Leave etc. Regulations came into force, there have been relatively few appeal cases relating to the right that Reg 10 provides to women (and partners) enjoying maternity, shared parental or adoption leave to be offered any ‘suitable available vacancy’ in preference to other candidates.
HR managers and indeed employment lawyers often misread, and therefore misunderstand, regulation 10. The case of Ballerino -v- Racecourse Association Limited is interesting because it reminds us again that even though the Claimant had less than 2 years’ continuous service not only did she enjoy protection from automatic unfair dismissal if she was subjected to unfavourable treatment i.e. selected for redundancy because of pregnancy or maternity, but also she had the right to be offered any suitable available vacancy in preference to other candidates.
In this case the claimant was a part-time in-house accountant. While she was on maternity leave the employer abolished her part-time role and created a new full time role which combined her duties with that of strategic business analysis. She was invited to apply for the new role but did not do so and was dismissed on grounds of redundancy.
At first instance the tribunal rejected Ballerino’s argument that the new role was a suitable available vacancy that she was entitled to be offered, as of right, without having to apply. It found that the focus of the job had changed with the emphasis on business analysis. There was a genuine reorganisation. It was not a sham restructuring. The new role was not a ‘device’ to get rid of her.
She appealed to the Employment Appeal Tribunal on the ground that the tribunal had not considered whether in fact there was a genuine redundancy situation. The appeal succeeded. The Appeal Tribunal ruled that the first instance tribunal had merely formed the impression that there was a redundancy without applying the statutory test in s 139 and asking itself after a thorough examination whether there was, or the employer expected, a diminution in requirements for employees carrying out the financial accounting work. The tribunal should have asked whether the “new” role – the suitable available vacancy – was suitable i.e. it was “the type of work”. The tribunal and therefore, in the first place, the employer should consider and compare the ‘work done’ with the job description of the new role.
Practical tip
Employers managing such redundancies should be diligent in demonstrating through consultation that there is a redundancy situation and whether or not there is a suitable available (new) vacancy. This will require documentation – documentary evidence, spelling out duties and responsibilities of the new role in comparison with the old job.