The recent case of Hunter v Carnival plc provides a useful reminder of the issues that can arise when an employee on maternity leave finds herself at risk of redundancy.

The facts

Laura Hunter worked for Carnival plc for 13 years until she was dismissed by reason of redundancy in or around May 2020. Ms Hunter was one of 21 team leaders working at Carnival’s contact centre. All were put at risk of redundancy when the COVID-19 pandemic forced the business to restructure its operations. When the redundancy situation was announced, Ms Hunter was on maternity leave. Following a pooling and selection exercise, as one of the 5 lowest scoring team leaders, Ms Hunter was selected for dismissal by reason of redundancy. 

The claims

Following her dismissal, Ms Hunter brought various claims against the company, one of which was an allegation that Carnival had acted in contravention of regulation 10 of the Maternity and Parental Leave Regulations 1999. Until recently, regulation 10 had the effect of giving potentially redundant employees on maternity leave additional protection from dismissal. In effect, if Ms Hunter was otherwise at risk of being dismissed by reason of redundancy, she was entitled to be offered any suitable available vacancy within the business ahead of any other member of staff. 

Given the circumstances of this particular case, the question arose as to whether the 16 team leader positions that were to remain within the business constituted suitable alternative vacancies that Ms Hunter should have been offered ahead of everyone else. Initially, the Employment Tribunal found in Ms Hunter's favour. However, when the case went to the Employment Appeal Tribunal, this decision was overturned. The EAT acknowledged that there will be situations in which, for example, two ‘old’ roles are made redundant and a new ‘merged’ role is created. In cases such as these, the protection provided by regulation 10 would be expected to bite. However, in Ms Hunter’s case, the 16 remaining team leader roles could not be said to be ‘vacant‘. Instead, they were filled by those people already performing those self-same roles.

Useful clarification

This case highlights the complexities that can arise in situations such as these, including the importance of carefully analysing the specific circumstances and considering whether a vacant position genuinely exists. The correct approach may not always be completely obvious.

While we are on the subject of redundancy and maternity rights, it's worth remembering that since 6 April 2024, the ‘protected period’ during which employees enjoy additional protection has increased. It now starts as soon as an employee informs their employer of their pregnancy and continues, in most cases, until 18 months after the expected week of childbirth or the actual date of birth.