Simpson v Endsleigh Insurance Services Ltd

Under regulation 10 of the Maternity and Parental Leave Regulations 1999, the existence of a suitable available vacancy is determined by reading regulations 10(3)(a) and 10(3)(b) together. The regulation does not create a two-stage process in which suitability of the work is assessed first and the contractual terms are negotiated later.

The employer must objectively assess whether the alternative work is suitable and appropriate and whether the new contract’s terms, including the place of employment, are not substantially less favourable. In making that assessment, the employer must take account of the employee’s known personal circumstances and work experience. There is no requirement for the employee to engage with the process before the employer makes the assessment.

The appellant was employed as an insurance consultant in London and was dismissed for redundancy while on maternity leave after the respondent closed its retail branch network. She alleged that the respondent should have offered her an insurance consultant or other suitable vacancy at its Cheltenham call centre under regulation 10 of the Maternity and Parental Leave Regulations 1999, making the dismissal automatically unfair under section 99 of the Employment Rights Act 1996.

The London Central Employment Tribunal rejected the automatic unfair dismissal claim, finding that the Cheltenham vacancies were substantially less favourable because of relocation and that the appellant would not have accepted them. The appeal challenged the construction and application of regulation 10. The respondent cross-appealed on the burden of proof.

1. Appeal dismissed. Regulation 10(3)(a) and (b) must be read together when deciding whether a suitable available vacancy exists under regulation 10(2). The regulation requires one new contract satisfying both requirements. It does not establish a two-stage process under which work is first found suitable and contractual terms are considered only after an offer.
2. The protection given to an employee on maternity leave lies in the entitlement to be offered a suitable vacancy in preference to other employees affected by the redundancy. The requirement that the new contract’s terms are not substantially less favourable provides the necessary protection concerning equivalence of employment.
3. The assessment is principally objective and is made by the employer. The employer must take account of what it knows about the employee’s personal circumstances and work experience. The employee is not required to engage with the process before the employer decides whether the vacancy is suitable. The Tribunal was entitled to find that relocation to Cheltenham made the vacancies substantially less favourable and that the appellant would not have relocated.
4. The Tribunal’s observation that the employer could test suitability by assessment and interview was treated with caution; the EAT was not satisfied that an employer could choose to do so in every case.
5. The cross-appeal concerning the burden of proof was dismissed as unnecessary to decide. The EAT noted that the regulations contain no apparent reverse burden and that a breach of regulation 10 produces automatic unfair dismissal under section 99, rather than sex discrimination.

• Employment Appeal Tribunal: Appeal from the judgment of the London Central Employment Tribunal, whose written reasons were sent on 21 September 2009. The EAT dismissed the appeal concerning regulation 10. The cross-appeal on burden of proof did not require determination.