Hi All,
Something that I've just come across and wanted thoughts on.
I've informed an employee of potential risk of redundancy, she is 34 weeks pregnant and is the only person within the department as the others were outsourced and TUPE'd over to another organisation.
Having informed the employee in question and whilst still in consultation, we felt it appropriate to inform her that there will be a new role created by the company not for her but due to the demands of the business, which she is entitled to apply for. The role is in a different function to what she is currently doing.
Question is do we have to "offer" her the role or would she have to express an interest and apply for it?
There are two schools of thought on this;
a) we have to offer her the role (Maternity & Parental Regulations, Reg 23)
b) as it's a new role she would have to apply for it and be considered Samsung Electronics (UK) Ltd v Monte-D’Cruz (unreported, EAT 0039/11 1 March 2012, EAT)
&
Morgan v Welsh Rugby Union [2011] IRLR 376, EAT
I'd be grateful to hear if anyone has had any experience with this and would share their thoughts.
Thanks
Baljinder
Replies
Hi Baljinder
An interesting one I guess it depends on the Company's approach to risk. It would be interesting to understand why her role was not TUPEd over?
But in any event my understanding is that the individual should be offered the role as suitable alternative employment if she is on maternity leave. From your post it looks like she is not on her ML yet, but the employee can start her ML at anytime now as she is within 11 weeks of her EDD. So this is probably a moot point.
Obviously we can't provide legal advise here at DPG, but I hope my opinion helps.
Kind regards
Sarah