Carnival PLC v Hunter – Understanding maternity leave protections during redundancy

In the recent case of Carnival Plc (t/a Carnival UK) v Hunter [2024] I.R.L.R. 94, the Employment Appeal Tribunal (‘EAT’) was given the opportunity to explain the position surrounding suitable alternative roles as a result of Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (‘MAPLE’) which gives special enhanced protections to pregnant employees and employees on, or returning from, maternity leave.

Legal Background

Where it’s not practicable by reason of redundancy for an employee to continue their employment, Regulation 10 MAPLE provides that an employee who is pregnant, on their statutory maternity leave or within the additional protected period, should be offered a suitable alternative role in preference to others. As of April 2024, this protection runs from the point that the employee informs their employer of the pregnancy and continues for a period of 18 months following the birth.

Case Facts

The employee, Ms Hunter, was on maternity leave when her employer, Carnival plc, underwent a redundancy exercise. It was decided that 21 team leaders would be reduced to 16. There was to be no change to the roles themselves, just a reduction in the number of roles required. Ms Hunter was one of the 5 lowest scoring team leaders and was made redundant. She brought a claim for automatic unfair dismissal. The Employment Tribunal found in her favour holding she fell within the protections provided by Regulation 10 MAPLE, so she should have been offered one of the remaining 16 roles as suitable alternative employment in preference to others. The employer appealed this decision.

The EAT held that the tribunal had erred in determining what a suitable alternative role was. Here, there was simply a reduction of roles. When she had been placed in the pool she was merely at risk of redundancy. It wasn’t until she was scored low that her role was made redundant and MAPLE was triggered entitling her to be offered a suitable alternative role. There would have been no new contract of employment offered to the employee if she had received one of the remaining roles and therefore it could not be an alternative role.  On the facts, the tribunal believed there were no other roles she could have been offered but did send the matter back to the tribunal to consider.

What do we learn from this?

This case highlights the duty on employers to consider suitable alternative employment for protected employees but also highlights that there is a distinction between redundancies where roles are simply reducing and ones where roles are changing.

In the case of Sefton Borough Council v Wainwright 2015 ICR 652, the EAT dealt with a situation where two roles would be merged together. Here, it was clear that the merged role was a suitable alternative role as there were two positions which were being replaced by one different role. The tribunal held that the employee on maternity leave should have been offered the role under MAPLE and the failure to do so meant this was an automatic unfair dismissal.

Ultimately these cases show that employers need to carefully assess whether, as part of the redundancy, they are simply selecting people out of roles or selecting them into new ones.  In the latter situation the duty under Regulation 10 will arise but in the former, where there is simply a reduction in the number of roles, it would not.  This is very fact specific and can be difficult for employers to assess – legal advice should always be sought if the situation is unclear.

If you have any queries regarding dealing with redundancies or need advice on conducting a fair process, please do get in touch and a member of our employment team would be happy to help.