Under Regulation 10 of the Maternity and Parental leave etc Regulations 1999, an employee on maternity leave whose role is being made redundant is entitled to be offered any suitable alternative vacancy. The recent case of Carnival Plc v Hunter [2024] EAT 167, has confirmed that this only applies to suitable alternate vacancies.

The claimant in this case argued that when the number of employees per bring her role (the pool) reduced from 21 to 16 she should have been offered one of the 16 roles under the legislation. However, the EAT held that the decision to reduce headcount meant that there were no suitable vacancies created in accordance with Regulation 10. All roles were pre-existing roles occupied by employees who had scored higher in the selection exercise. There was no obligation to slot an employee on maternity leave into a stable vacancy under Regulation 10 until after her role is redundant and only if a suitable alternative vacancy is created or exists.

The case will be welcome for employers in a conventional selection exercise to know that the legislation does not override a valid selection process. Regulation 10 does not kick in until the employee is selected as redundant and does not oblige an employer to discount the employee from the selection exercise. They cannot be selected on the grounds of maternity leave of course or for reasons connected to it but do not need to be protected to the extent that they are favoured over higher scoring (and thus presumably better) colleagues.