An employee was on maternity leave when her employer restructured her department.
“EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. held that reduced-headcount roles aren't Reg 10 vacancies, and quashed the unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... findings.”
Your priority right to a suitable alternative vacancyA suitable alternative vacancy is a genuinely comparable role your employer must offer you before making you redundant, if one exists. If you're on maternity, adoption, shared parental, neonatal care,... applies to genuinely new or merged roles, not to surviving roles in a straightforward headcount reduction.
- Ask exactly what happened to the roles in your restructure: reduced in number, or genuinely merged into something new.
- Don't assume every "no vacancy" answer from your employer is wrong. Sometimes it's legally correct, even while you're on protected leave.
- If a merger or new position is involved anywhere in the restructure, your priority right likely applies to it, even if your employer frames the outcome as "no vacancies."
The situation
An employee was on maternity leave when her employer restructured her department. Twenty-one team leader posts were reduced to sixteen. A selection process ranked everyone, including her, against the others, and she scored lower than several colleagues who kept their jobs.
She argued that, because she was protected by Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, she should have been given one of the sixteen remaining roles ahead of a colleague who'd scored higher. An employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public. agreed with her.
What the tribunal found
The EAT overturned that decision. It drew a sharp line between two different kinds of redundancy restructuring.
Where an employer is simply reducing the number of existing roles, the roles that remain filled are not "vacancies" for Regulation 10 purposes. The regulation doesn't require an employer to remove a higher-scoring employee from their job to make space for someone on maternity leave who scored lower. That would go beyond what the right was designed to do.
The picture is different where an employer merges two or more roles into a genuinely new position. In that situation, a real vacancy exists, and Regulation 10 does require the employee on protected leave to be offered it ahead of a higher-scoring colleague. The question is whether a new role has actually been created, not whether the employee would have preferred to keep one of the old ones.
For the fuller picture of this right across all six family leave types, see our guide on redundancy and family leave: your right to be offered a suitable role first.
Carnival plc (t/a Carnival UK) v Hunter. [2024] EAT 167. Employment Appeal Tribunal. 2024.