In the unfortunate event that a redundancy scenario arises, making it impracticable for an employer to continue to employ an employee who is on maternity leave under their existing contract, employers must follow the legislative requirements and offer the employee any other suitable vacant role that exists. The employer must offer the employee on maternity leave any other existing vacancy which is suitable given their circumstances and does not have substantially less favourable terms of employment, whether this be under the employment of the employer, their successor or any other associated employer.

However, this situation can become increasingly more difficult when several candidates for redundancy are on maternity leave at the one time, but only one alternative vacancy exists. Whilst there is no legislative procedure to be followed in this situation, the case of Simpson v Endsleigh Insurance Services [2010] held that it is entirely within the employer's discretion to determine which candidate is most suitable for the vacancy. As such, employers must proceed with caution and ensure that this decision is treated objectively, taking into consideration each candidate's unique circumstances and determining whether these make them suitable for the available role.

Once the employer has determined which candidate is most suitable and should be offered the alternative role, they must provide the unsuccessful employee with a written statement explaining the reasons for their decision to make them redundant.

Overall, it is advisable for employers to seek independent legal advice and keep notes documenting how this decision has been reached so that this may be used to defend their decision if the unsuccessful employee brings a claim against the employer for unfair dismissal and/or discrimination.