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The Maternity and Parental Leave etc. Regulations 1999 reg.10(3)(a) and reg.10(3)(b) had to be read together when determining whether there was a suitable available vacancy under reg.10(2).
The appellant (S) appealed against a decision of the employment tribunal that the respondent (E) had not breached the Maternity and Parental Leave etc. Regulations 1999 reg.10 when making her redundant, with the result that her dismissal had not been automatically unfair. S had worked for E as an insurance consultant in London. While she was on maternity leave, E closed down most of its retail outlets, relocating the business to call centres in Cheltenham, Burnley and Northern Ireland. S was invited to apply for a position in one of those centres but failed to do so. She claimed that she should have been offered alternative employment in Cheltenham. The tribunal rejected her evidence that she would have been willing to relocate to Cheltenham. It also found that, viewed objectively, the post of insurance consultant on offer in Cheltenham was substantially less favourable to her in terms of place of employment than if she had continued to be employed under her previous contract; there had therefore been no obligation on E under reg.10 of the 1999 Regulations to offer the post to her and no breach of that regulation. S argued that (1) reg.10(3) should be construed as a two-stage process whereby the onus was on the employer to offer any suitable alternative vacancy to the employee before entering into discussions as to whether the terms were substantially less favourable; in the instant case, E should have offered her an insurance consultant post in Cheltenham as opposed to simply sending her information on vacancies and inviting her to reply; (2) the tribunal had erred in adopting an objective approach principally from the employer's perspective rather than considering the question from the employee's point of view.
HELD: (1) Regulation 10(3)(a) and reg.10(3)(b) of the Regulations had to be read together when determining whether there was a suitable available vacancy under reg.10(2). The requirement of suitability set out in reg.10(2) could only sensibly be tested by the requirement that it was coupled with a new contract of employment, which complied with reg.10(3). To suggest that reg.10(3)(a) could be looked at apart from Regulation 10(3)(b) was to import a two-stage process into the regulation which was not apparent from its wording. (2) The tribunal had been correct to focus on an objective decision made by the employer, since under the Regulations there was no requirement on the employee to actually engage in the process, although clearly the employer would have to consider what it knew about the employee's personal circumstances and work experience. Ultimately it was up to the employer, knowing what it did about the employee, to decide whether or not a vacancy was suitable.