Redundancy and maternity protection – bump for a bump?

Over the last decade, the spotlight has intensified on the treatment of pregnant workers, particularly when it comes to redundancy.  

This has in turn led to increased focus on the operation of 'regulation 10' (regulation 10 of the Maternity & Parental Leave etc Regulations 1999):  the right of a pregnant worker / maternity leaver, in a genuine redundancy situation, to be offered alternative employment where there is a 'suitable available vacancy'.  Failure to comply with this right renders the redundancy dismissal automatically unfair.

The current law

Regulation 10 has been around for a long time but has sometimes caused confusion.  Here are two examples of common situations in which employers must consider if and how it applies.

• Restructuring of roles:  A council must make budget cuts and so proposes to combine two management roles into one.  Both current role-holders are notified that they are at risk of redundancy.  One of them is on maternity leave.  Both are qualified to perform the new role and are interviewed for it, but the maternity leaver is edged out by the other individual as the preferred candidate.  There are no other available roles that are suitable for her.
• Reduction in numbers:  Following a downturn in business, an employer proposes to cut its team leader roles from 21 to 16.  One of the team leaders is on maternity leave.  All 21 team leaders are placed in the redundancy selection pool, and the criteria for selection are agreed with employee representatives.  Scoring is undertaken by managers and calibrated.  The maternity leaver scores in the bottom 5. 

These are real regulation 10 scenarios that have been decided upon by the Employment Appeal Tribunal ('EAT') – the first a few years ago and the second this year.

In the first scenario (role restructure), the EAT made it clear that regulation 10 applies.  The new, combined role is 'suitable' and a 'vacancy' and therefore (absent any other suitable vacancy offered to her) the maternity leaver must be offered it.  She takes priority over the other (better) candidate.

Until 2024 there was no reported case on the second scenario (role reductions).  Now the EAT has said (overturning the Employment Tribunal's decision) that, on these facts, regulation 10 does not apply.  The team leader roles were not 'vacancies' because they were already filled by team leader candidates who had had higher scores in the redundancy exercise. Regulation 10 does not operate to override a valid selection process by giving a lower-scoring maternity leaver the right to 'bump' a higher scorer colleague out of their role.  

Although this is helpful clarification, employers should be careful because:

• the case does not mean an employer never needs to consider 'bumping' – it just means that regulation 10 doesn’t provide a right to bump someone out of their role. Not considering 'bumping' at all may mean that a redundancy process is unfair, even if the claim of automatic unfair dismissal for a maternity related reason does not succeed;
• employers who cut numbers by using the (now somewhat discredited) practice of asking staff in a redundancy pool to re-apply for their role might find this makes it a 'vacancy' and therefore have to offer the role to the maternity leaver; they may also trip up on the proposed new 'fire and re-hire' laws;
• some seemingly straightforward cases of number cuts might also not be so simple: if existing roles will take on new duties, this might amount to a new role - and therefore a 'vacancy';
• even if regulation 10 does not apply, in the event of dispute a tribunal is likely to scrutinise carefully how a maternity leaver has been selected for redundancy, with a view to determining if any discrimination or unfairness is at play.

The future of regulation 10

In April 2024, regulation 10 was extended to apply for an 'additional protected period' of up to 6 months after maternity leave has ended.  But the new Government wants to go further.  In its 'Next Steps to Make Work Pay' paper, it said it will 'make it unlawful to dismiss pregnant workers within 6 months of their return to work except for in specific circumstances'.  Similar laws exist in several other countries.  No further detail has yet been provided so it remains to be seen how this will work in practice.