An employment tribunal’s decision in Woods v Capita Property and Infrastructure Ltd provides a practical insight into the considerations an employer must give in a restructuring exercise in respect of Regulation 10 of the Maternity and Parental Leave Regulations 1999, ‘Redundancy during maternity leave’. This requires that where there is a suitable available vacancy, the employee is entitled to be offered alternative employment under a new contract of employment where the work to be done is suitable and appropriate in the circumstances and the terms and conditions are not substantially less favourable to the previous contract.

The employer undertook a restructuring exercise which involved amalgamating two roles into one and Ms Woods held one of the roles affected. The process of deciding which job holder would be offered the new role consisted of a selection interview and occurred during Ms Woods maternity leave. The other candidate was offered the job  and she was dismissed. She argued that: (i) her performance at the interview had been affected by the fact that her newly born child had been seriously ill and she had not had much sleep; (ii) her marks gave no reflection of the contribution she had made during her long service; and (iii) assessment on the basis of a one-hour interview when she was on maternity leave and looking after a sick child was unfair.

Applying Regulation 10 of the Maternity and Parental Leave Regulations 1999, the Tribunal found the dismissal unfair as the amalgamated role was a suitable available vacancy so Ms Woods should not have been required to compete for the role but, should simply have been offered it. Note, however, that her claim for direct pregnancy and maternity discrimination under S.18 of the Equality Act 2010 was rejected because the redundancy decision was based on performance at the interview and the reason was not because of pregnancy or maternity leave.

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