Introduction to this document

Offer of alternative work during family leave

Use our letter to offer a suitable and appropriate alternative vacancy to a provisionally redundant employee who’s absent on maternity, adoption or shared parental leave. They have an absolute statutory right to be offered the job role, even if other redundant staff are stronger candidates.

Preferential right

The legislation states that where there’s a suitable and appropriate alternative vacancy on redundancy during an employee’s maternity, adoption or shared parental leave, they’re entitled to be offered, before the end of their employment under their existing contract, that alternative employment (with you or an associated employer) under a new contract, which takes effect immediately on the ending of their employment under the existing contract. If you don’t offer the vacancy and the employee is then made redundant, it’s an automatic unfair dismissal. This statutory right is absolute and applies in preference to other employees who are at risk of redundancy, regardless of whether they may be better qualified for the alternative employment. It’s also a right to be offered the alternative job, not just a right to apply for it. So, they shouldn’t need to go through a competitive interview process - unless there are two employees with the right and there’s only one job available. Conversely, if there’s more than one alternative vacancy, the employee doesn’t need to be offered all of them; you can choose which one to offer. However, the right only applies to those actually on maternity, adoption or shared parental leave during the redundancy process; it doesn’t apply to those due to take it shortly, nor those who’ve recently returned to work.

Contract requirements

The new contract of employment must be such that:

  • the work to be done under it is both suitable and appropriate for the employee to do in the circumstances; and
  • its provisions as to the capacity and place in which the employee is 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.

Therefore, if the only alternative employment is unsuitable or inappropriate, it doesn’t need to be offered in priority under these provisions, although you should still notify them about it and give them an opportunity to apply as part of an overall fair redundancy procedure. Whether a vacancy is suitable and appropriate is decided taking the employee’s personal circumstances into account, as well as their skills, qualifications and seniority. If you’ve any doubts about the suitability of a vacancy, discuss it with the employee anyway. In addition, if the job content of the new post is suitable and appropriate but the terms are substantially less favourable (e.g. as to pay or location), again it wouldn’t need to be offered in priority here, but the same rule applies about still ensuring your overall redundancy consultation process is fair.

Offer letter

Our Offer of Alternative Work during Family Leave formally offers the employee the alternative job role, sets out details of the contract changes and attaches a new contract of employment. If they accept it, they continue in employment, meaning no redundancy payment. We’ve also inserted optional paragraphs for use where the new terms are different to the current ones, as here a statutory four-week trial period in the new post will apply - see our Offer of Alternative Work for further information about this. The employee may still choose to refuse the alternative employment offer but, in this case, they can forfeit their entitlement to statutory redundancy pay if they unreasonably refuse an offer of suitable employment - again see our Offer of Alternative Work.

Ongoing duty

Your duty to offer a suitable and appropriate alternative vacancy to an employee on maternity, adoption or shared parental leave continues right up until the date when their employment terminates. Once employment has ended, there is no further duty on you to offer new employment.