This article refers to another article on this website. The other article deals with all aspects of redundancy while on maternity leave. This article should be read in conjunction with that article as it deals only with one aspect of this area of law. It deals with the question of what ‘suitable’ means. This is in the context of the law that says a woman on maternity leave at risk of redundancy must be offered any job that is suitable and available. This area of law is found in Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999.
The 'normal' i.e. non maternity related redundancy law also deals with suitable alternative vacancies and while that law still applies to ladies on maternity leave it is not covered here. This article deals with suitable alternative jobs in connection with the dismissal of a woman as redundant while she is on maternity leave.
Regulation 10 of the maternity regulations is an example of permitted positive discrimination in that the woman on maternity leave can jump the queue to get the alternative job. It is almost an automatic right to get the job. As far as we are aware there has been one case, only at the tribunal level and not reported on the question of what ‘suitable’ means. The case is called Bentley v The Body Shop.
The judgement in that case reveals that the Employment Tribunal had carried out its own inquiries about previous cases on the question of the word 'suitable' but had not found any. The case was in 2000. Counsel for Ms Bentley (i.e. her barrister) said, in connection with the word 'suitable' that the relevant right was to be given a suitable alternative jobs regardless of the fact that there was another more qualified candidate. Counsel for the Company said that the relevant provision was meant to protect those employees on maternity leave by giving the right to be considered for alternative employment but not the right to be offered it over and above better candidates. The Tribunal rejected this interpretation.
The Employment Tribunal found that Regulation 10 is not subject to the qualification that the woman is the more competent candidate for a vacancy and that, therefore, applying the law must involve some element of positive discrimination against equally or more competent male employees. The Tribunal considered this provision in respect of other male candidates but, of course, the provision equally applies against other female candidates. In that respect we consider that the Tribunal was wrong to constantly refer to other male candidates as it should have simply considered other candidates. The tribunal said that the law meant that the women on maternity leave had 'some preference over equally or better qualified men'. However, it went on to say that the law does not 'accord any entitlement to a returning woman to be appointed to any job she is physically capable of performing if she would be very much less competent in performing it that the male candidate'. It also said that a line must be drawn somewhere otherwise the word suitable ceases to have meaning and that a job would not be suitable if the woman were able to perform its duties but to do so relatively incompetently when compared to a male candidate for it.
This was a case in 2000 in which the Tribunal said that it hadn't found any previous cases on 'suitable' in this context. When we looked, when updating this article, at the end of 2009, we didn't find any other cases either. Clearly, this case is only a tribunal decision and is, therefore, not to be relied on as any sort of precedent. We also think that the case proceeded on the wrong basis in at least two areas. At one point it went into a discussion about whether Ms Bentley applied for certain jobs: the law is such that it is the employer's obligation to offer the suitable and available job not for the employee to apply for the job. As such we think the Employment Tribunal's concentration on whether the woman 'applied' is irrelevant. However, we think that an employee should at least assist the Company in its process of coming to a conclusion as to whether any particular job is suitable and obviously express interest if asked. In addition, this case concentrated on comparing the other candidates for the various alternative jobs against Ms Bentley and expressly decided that a relevant criterion was whether she would have been much less competent than the other candidate. We think that in deciding the case in that way the Tribunal erred as the law seems to make the strengths of the other candidates irrelevant.
That said, we think the Tribunal was right to note that the word 'suitable' must mean something. We think that the word suitable should only relate to the woman herself and the job and not the suitability of anyone else. We think that it would be correct to consider that in this context 'suitable' relates both to the type of job and the work and location involved and the fact that that woman could be expected to do the job properly. If she can't do the job properly it isn't suitable and this can be considered regardless of whether there are any other candidates for that job.
As we said at the outset of this article this is only a part of the overall law on redundancy and pregnancy. For a fuller discussion please see our main article.