The EAT has held that the duty to offer a woman on maternity leave a suitable alternative vacancy in priority to other candidates under Regulation 10 of the Maternity and Parental Leave Regulations is triggered when the employer becomes aware that her role is redundant or potentially redundant, as defined in the Employment Rights Act 1996. The EAT also confirmed that whilst a breach of the Reg. 10 duty will render a dismissal automatically unfair, it does not necessarily mean that the woman was directly discriminated against on the grounds of sex.
Regulation 10 of the Maternity and Parental Leave Regulations 1999 gives a woman on maternity leave a right to be offered a suitable alternative vacancy if a redundancy situation arises, ("the Reg. 10 duty") even if there are other candidates who are better suited to the role. Breach of the Reg. 10 duty renders a dismissal automatically unfair.
Sefton Borough Council v Wainwright
Faced with budgetary constraints, the Council decided to create a new Democratic Service Manager role ("DSM role"), which was a combination of two existing manager roles held by Mrs. Wainwright and Mr Pierce. Mrs. Wainwright and Mr Pierce were informed that their roles were at risk of redundancy in July 2012, by which point Mrs. Wainwright had commenced maternity leave.
The Council invited both employees to apply for the new role. Following the interview process, Mr Pierce was confirmed in role as the Council considered him the better candidate. Mrs. Wainwright was given notice of dismissal and ultimately dismissed for redundancy. She brought claims for breach of the Reg. 10 duty, automatic unfair dismissal and direct sex discrimination.
The Tribunal upheld all her claims. In respect of the Reg. 10 duty, the Council accepted that Mrs. Wainwright was qualified for the DSM role and that it would have been a suitable alternative vacancy if the Reg. 10 duty was triggered. However, it argued that the Reg. 10 duty was not triggered until the restructuring was complete i.e. when Mr Pierce had been confirmed in the newly combined role.
The Tribunal rejected this argument holding that the Reg. 10 duty arose once the Council knew that there was a redundancy situation affecting Mrs. Wainwright, which it found had occurred in July 2012. Once that duty was triggered, Mrs. Wainwright had an absolute right to be offered a suitable alternative vacancy if one existed. The Council appealed.
The EAT rejected the appeal in respect of the Reg. 10 duty and automatic unfair dismissal but upheld the appeal in respect of direct sex discrimination.
Reg. 10 duty and automatic unfair dismissal
The EAT agreed with the Tribunal that the Reg. 10 duty was triggered when Ms. Wainwright's role was identified as being at risk of redundancy. The Tribunal was entitled to find that this happened in July 2012.
The Council had argued that the DSM role was not a "vacancy" as it was not available to a pool wider than Mrs. Wainwright and Mr Pierce. The EAT held, however, that such an argument was not sustainable. It would undermine the purpose of Reg. 10 if the Council was free to wait until after the restructure had been completed before offering Ms. Wainwright the vacancy. Once the Reg. 10 duty is triggered, a woman on maternity leave has an absolute right to be offered a suitable alternative vacancy if one exists, even if she isn't the best person for the role.
The EAT also suggested that the Reg. 10 duty may be complied with by offering "a" suitable alternative vacancy and that there was no need to offer "every" suitable vacancy to the woman on maternity leave.
Direct sex discrimination
The EAT held that the Tribunal had erred in assuming that the breach of the Reg. 10 duty inevitably meant that the Council had directly discriminated against Mrs. Wainwright on the grounds of sex. The Tribunal had been required to investigate the reason(s) why Mrs. Wainwright had been treated the way she had been, but had not done so.
This case is helpful in light of the limited authorities to date on the scope of the Reg. 10 duty. Whilst the decision seems correct on these facts, the position may be different in other circumstances. It is also important to note that this case does not decide that a pregnant woman should be taken out of the redundancy pool where for example, the roles are not being restructured but are merely being reduced in number.
Caution should also be exercised in respect of the EAT's suggestion that the Reg. 10 duty is limited to offering "a" suitable vacancy and that there is no need to offer "every" suitable vacancy. Whilst it may not be a breach of the Reg. 10 duty, offering some but not all suitable vacancies to a woman on maternity leave may give rise to a sex discrimination claim where the vacancy offered is perceived to be less senior/desirable than other suitable vacancies that exist at the time.
The decision is also a helpful reminder that breach of the Reg. 10 duty does not automatically mean that a woman has been discriminated against on the grounds of sex. Whilst in many cases a finding that Reg. 10 has been breached will also answer the discrimination question, the Tribunal must still carry out the relevant analysis and explain the reasons for its decision.