Simpson v Endsleigh Insurance Services Ltd and ors relates to an employee’s redundancy dismissal during maternity leave and whether or not this was automatically unfair. The central issue was whether a position within the employer’s organisation that would have required the employee to relocate upon her return from maternity leave, constituted a suitable available vacancy that should have been offered to her.
If an employee’s job becomes redundant while she is on maternity leave, the law affords her special protection. Regulation 10(2) of the Maternity and Paternity Leave etc Regulations 1999 (‘the MPL Regulations’) entitles her to be offered a ‘suitable available vacancy’ – in preference to any employee not on maternity leave – under a new contract of employment which complies with Regulation 10(3). Regulation 10(3)(a) provides that the work to be done under the new contract must be ‘both suitable in relation to the employee and appropriate for her to do in the circumstances’.
Furthermore, under Regulation 10(3)(b), the terms and conditions of the new contract, including those governing the capacity and place in which she is to be employed, must not be substantially less favourable than those of her previous contract of employment. If the employer fails to offer a suitable vacancy to the employee in accordance with Regulation 10(2), any subsequent dismissal will be automatically unfair under section 99 of the Employment Rights Act 1996 if the reason for the dismissal is redundancy.
The facts in this case were that EIS Ltd announced a proposal to close 119 retail outlets and relocate the business to its call centres in Cheltenham, Burnley and Belfast, shortly after Simpson went on maternity leave. It began consulting the workforce about this and sent Simpson regular correspondence, including details of vacancies. A final consultation document sent to Simpson stated that staff would be automatically offered an insurance consultant position (the same position held by Simpson) in Cheltenham, Burnley or Belfast if they applied for it. Simpson, however, showed no interest in this position or in any other vacancies, apart from one based in London. She later claimed that this was because she had been very ill following childbirth and her attention was focused on looking after herself and her child. Following the closure of the company’s retail business, and her failure to obtain alternative employment, Simpson was made redundant and subsequently claimed an automatically unfair dismissal.
Employment Solicitor, Paul Burton, explains "The Tribunal found that the employer had been entitled to conclude that the four posts were either not suitable in relation to her or not appropriate for her to do in the circumstances within the meaning of Regulation 10(3)(a) because of the relocation. In addition, it held that the new place of employment amounted to a substantially less favourable term for the purpose of Regulation 10(3)(b). Accordingly, the obligation under Regulation 10(2) was not triggered and the section 99 claim failed."
Following Simpson’s appeal, the Employment Appeal Tribunal rejected Simpson’s suggestion that a suitable available vacancy had to be offered to the employee when Regulation 10(3)(a) is satisfied and that Reg 10(3)(b) need only be looked at afterwards as part of the negotiations, as this seemed to import a two-stage process into Reg 10(3) that was not apparent from its wording. Both limbs of Regulation 10(3) needs to be satisfied before an employee is entitled to be offered alternative employment under Regulation 10(2). The Employment Appeal Tribunal also rejected Simpson’s contention that the Tribunal had failed adequately to explain its reasons for concluding that she would not have been willing to relocate to Cheltenham. The Tribunal had given very clear and specific reasons entitling it to reach this conclusion; namely, that Simpson had not applied for any job in Cheltenham; that the only job she had shown any interest in was in London; and that she had expressed no interest in any of the posts identified by the Tribunal as potentially suitable, despite having lodged a lengthy grievance with the company about other matters.