Faced with having to make budget cuts the employer in Sefton Borough Council v Wainwright was planning redundancies.  As part of the restructuring a new position was created; that of Democratic Service Manager (DSM).  This combined the claimant’s role as Head of Overview and Scrutiny with the equally graded position of Head of Member Services.  Both the claimant and the current Head of Member Services were notified that their positions were at risk of redundancy and they were formally placed on that footing on 26 July 2012.  The claimant had by that time started her maternity leave.

Both the claimant and the Head of Member Services were interviewed for the new position.  It was common ground that the Head of Member Services was the better candidate and he was offered the DSM position in December 2012.  In January 2013 the claimant was given notice of redundancy.  She was told of her right to be redeployed, but she did not express interest in other alternative positions and the redundancy took effect in April 2013.

The tribunal found that the claimant had a right to be offered the DSM post as a "suitable alternative vacancy" under the maternity regulations and, as the Council had failed to do this, her dismissal was automatically unfair.  The tribunal also found the dismissal was direct pregnancy discrimination.

In the EAT the Council argued that the DSM role was not a "vacancy" (because either the claimant or the other candidate was going to be slotted into it) and the claimant was not "redundant" and entitled to be offered a suitable alternative vacancy until the decision had been taken as to who was the best candidate for the DSM role.  The EAT rejected this; the tribunal was entitled to conclude that there was a redundancy when the Council decided (in July 2012) that two positions would be replaced by one.  The Council's interpretation would undermine the protection offered by the regulations.  Having said that, the EAT did agree that an employer is not obliged to offer every suitable vacancy (or, indeed, any particular vacancy) if more than one might be suitable.  So if the Council had offered the claimant a suitable vacancy other than the DSM position, it might well have complied with the regulations.

The decision shows the dangerously fine line the employer must tread in these circumstances.  The obligation is to do what is reasonably necessary to give the statutory protection to the employee.  Doing more than this could be disproportionate and puts the employer at risk of unlawfully discriminating against others who do not have that protection (as in the 2011 case of Eversheds Legal Services v De Belinwhere inflating the score of an employee on maternity leave in a redundancy selection process was found to be sex discrimination against her male colleague).

The EAT did, however, allow the Council's appeal on discrimination.  The tribunal had wrongly equated a breach of the maternity regulations with direct discrimination.  The former require more favourable treatment, whereas there can be no direct discrimination unless there isunfavourable treatment.  While the claimant being on maternity leave was certainly the context for her unfavourable treatment, this did not inevitably mean that the treatment was because of her maternity leave.  The EAT sent the case back to the tribunal for further consideration of this issue.