UK: tribunal ruling highlights that priority for pregnant employees in a redundancy situation applies only post-selection

In a redundancy process, employees who are pregnant, on maternity/adoption/shared parental leave, or within the 18 month period after birth/adoption are not protected from selection for redundancy but, once selected, must be given priority over any suitable vacancies (ie, offered any such vacancy, without needing to be the next candidate).

The case of Carnival Plc v Hunter highlights the distinction between a scenario when there is a simple reduction of roles from 21 to 16 with 5 redundant employees identified through the application of selection criteria, and the scenario where all 21 roles are redundant (and therefore all 21 employees are at risk of redundancy) and 16 new and materially different roles are created, eg, through amalgamation of duties as part of a reorganisation.  It is only in the latter case that there are alternative vacancies post-selection for redundancy and the priority rights to be offered those posts apply.  In the former scenario, an employee in a protected period, who, following a lawful selection process, scores lower than others, does not have the right to retain their job over a higher scoring colleague.

Employers should note that the Employment Rights Bill envisages extending protection during pregnancy and following statutory family leave to cover dismissals other than for redundancy, with details yet to be confirmed.