Q&As

Where an employer is carrying out a restructure, involving the removal of some roles and the creation of others, involving a selection process for the new roles, when is the obligation to offer an employee who is on maternity leave any suitable alternative vacancy triggered?

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Published on LexisPSL on 30/07/2021

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where an employer is carrying out a restructure, involving the removal of some roles and the creation of others, involving a selection process for the new roles, when is the obligation to offer an employee who is on maternity leave any suitable alternative vacancy triggered?

Where an employer is carrying out a restructure, involving the removal of some roles and the creation of others, involving a selection process for the new roles, when is the obligation to offer an employee who is on maternity leave any suitable alternative vacancy triggered?

For information on the obligation to offer suitable alternative employment to a woman who is on maternity leave under the Maternity and Parental Leave etc Regulations 1999 (Mat/Pat Regs 1999), SI 1999/3312, reg 10, see the section of Practice Note: The right to return to work after maternity leave entitled Redundancy during maternity leave.

The obligation arises where it is not practicable by reason of redundancy for the employer to continue to employ the employee under her existing contract of employment.

In those circumstances, the employer must offer the employee any suitable alternative vacancy that exists either:

  1. with the employer

  2. the employer's successor, and/or

  3. with any associated employer

'Redundancy' in Mat/Pat Regs 1999, SI 1999/3312, reg 10 has the same meaning as in section 139 of the Employment Rights Act 1996 (ERA 1996). Once an employee’s position is redundant within this definition, the obligation under regulation 10 arises (Secretary of State for Justice v Slee, UKEAT/0349/06; Sefton BC v Wainwright).

For further information, see the section of Practice Note: Definition of redundancy entitled Redundancy payment entitlement, and fair reason for dismissal (ERA 1996).

The right

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