No suitable available vacancy on redundancy letter

Employees who are selected for redundancy whilst they are pregnant or on maternity, adoption or shared parental leave, or if they have recently returned from such leave, have priority to any suitable available vacancy. Where no such vacancy exists, notify them using our letter.

Suitable available vacancy

If an eligible employee is provisionally selected for redundancy, the law provides that they’re entitled to be offered any suitable available vacancy (including with an associated employer) under a new employment contract, to take effect immediately on the end of their existing contract. An eligible employee is one who has notified their employer that they are pregnant, or who is on maternity, adoption or shared parental leave, or who has recently returned to work from maternity or adoption leave or from a period of at least six consecutive weeks of shared parental leave. For those who have recently returned from maternity or adoption leave, this entitlement generally runs until 18 months after the expected week of childbirth or the date of the child’s placement for adoption. For those who have recently returned from at least six consecutive weeks of shared parental leave, this entitlement runs until 18 months after the date of the child’s birth or placement for adoption. The new contract must be such that: (1) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for them to do in the circumstances; and (2) its provisions as to the capacity and place in which they’re to be employed, and as to the other terms of employment, are not substantially less favourable than if they’d continued employment under their existing contract. Importantly, this right is absolute, so if you do have a suitable vacancy available, the employee must be offered it in preference to other employees who are also at risk of redundancy but aren’t pregnant or on maternity, adoption or shared parental leave or haven’t recently returned from such leave (even if another “at risk” employee is a better candidate).

What’s suitable and appropriate?

Whether a vacancy is “suitable” and “appropriate” must be decided taking the employee’s personal circumstances and their skills, qualifications and status into account. Even if the vacancy is suitable and appropriate, if the terms of the role are substantially less favourable, e.g. as to pay or location, there’s then no obligation to offer it to the employee in priority. If there’s more than one suitable vacancy available, you don’t need to offer the employee a choice; you’ll fulfil your statutory duty if you offer them just one role. Where there’s no suitable available vacancy that meets the statutory criteria, the employee should still be given an opportunity to apply for any other vacant roles alongside other “at risk” employees as part of a fair redundancy procedure.

Letter content

Our No Suitable Available Vacancy on Redundancy Letter is to send to “at risk” eligible employees in circumstances where there’s no suitable available vacancy. It sets out the legal position, provides that no vacancy fulfilling the statutory criteria currently exists and then advises the employee that you’ll continue to monitor that position and to involve them in the redundancy process. Where applicable, we envisage that you’ll send our letter as a follow up to our Second Redundancy Consultation Letter.