In the recent case of Sefton Borough Council v Wainwright UKEAT/0168/14, the Employment Appeal Tribunal (EAT) considered whether a failure to offer an alternative role to an employee on maternity leave during a redundancy process was discriminatory.

Background

Under section 18 of the Equality Act 2010, pregnancy and maternity discrimination occurs where an employer:

  • treats a female job applicant or employee unfavourably during the protected period because of her pregnancy or because of an illness suffered by her as a result of her pregnancy; or
  • treats a female employee unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

Regulation 10 of the Maternity and Parental Leave Regulations 1999 applies where it is not practicable, by reason of redundancy, for an employer to continue to employ someone on maternity leave under her existing contract of employment.  In this situation, the employee is given a preferential right to be offered any suitable alternative vacancy before the end of her current role.  A failure to comply with regulation 10 renders a dismissal automatically unfair.

Facts

Mrs Wainwright was employed by Sefton Borough Council (the Council) from May 2001 until April 2013, when she was dismissed for redundancy. She was on maternity leave from July 2012 until her dismissal.

Shortly after Mrs Wainwright commenced her maternity leave, the Council embarked on a redundancy and reorganisation procedure whereby two managerial posts were to be combined into one new role. Mrs Wainwright was placed in a pool of two with a male manager.

The Council interviewed Mrs Wainwright and her male colleague for the new combined role and took the decision that the male colleague was better qualified for the position. There were few other alternative vacancies and, in any event, no vacancy was offered to Mrs Wainwright. She was subsequently dismissed for redundancy.

Mrs Wainwright brought claims in the employment tribunal for automatic unfair dismissal, pregnancy and maternity discrimination and direct discrimination.

Employment tribunal decision

The tribunal considered that regulation 10 applied and gave Mrs Wainwright the right to special treatment in that, where there is a suitable available vacancy, it must be offered to the employee on maternity leave.  It held that there should not have been a selection process for the new combined role and Mrs Wainwright should have been slotted into the position.  The Council’s failure to do this meant that Mrs Wainwright's dismissal was automatically unfair and an act of direct pregnancy and maternity discrimination.

The Council appealed, arguing that the duty to offer suitable alternative employment to Mrs Wainwright only arose when the reorganisation had been completed and the decision over the new combined role had been made.

EAT decision

The EAT held that the tribunal had been correct to conclude that the Council had breached regulation 10.  In particular, it found that it would undermine the purpose of regulation 10 if the employer was free to wait until after a restructure had been completed before offering the woman a vacancy.  Because the new post was unoccupied at the time Mrs Wainwright’s position became redundant, it was open to the tribunal to conclude that it was an available vacancy, which she was entitled to be offered under regulation 10.  It was an absolute right and a woman on maternity leave was entitled to be offered it, even if she was not the best candidate for the job.  Mrs Wainwright should not have been required to go through any form of selection process.

The EAT noted that it may have been the case that the Council could have met its obligation under regulation 10 if it had offered Mrs Wainwright a different suitable alternative vacancy but it did not do so.

The EAT did, however, uphold the Council's appeal in relation to the direct discrimination claim.  It found that the tribunal had not fully considered why Mrs Wainwright had not been offered the alternative role and had, therefore, been wrong to conclude that because the Council had breached regulation 10 it inevitably followed that it had discriminated against Mrs Wainwright because of her pregnancy or maternity leave.

An application by the Council to appeal the regulation 10 point to the Court of Appeal was refused by the EAT, as it did not give rise to any arguable point of law for the Court of Appeal nor was there considered to be any compelling reason for it to proceed to a further appeal.

Comment

This case confirms that a breach of regulation 10 will amount to automatic unfair dismissal. However, such a breach will not necessarily be discriminatory because of an employee’s pregnancy or maternity - that will depend on the facts and circumstances of each case.

This decision demonstrates that the duty under regulation 10 arises when an employer becomes aware that the employee's role is redundant or potentially redundant. In practice, this is likely to be when the employer notifies the employee that she may be at risk. If there is a suitable vacancy for which the employee is the only appropriate candidate, that vacancy must be offered to her in order to comply with the employer’s duty under regulation 10. However, where there is more than one suitable alternative role for the employee, it would appear that an employer will satisfy regulation 10 as long as it offers one of those vacancies to her. Where there is more than one candidate for the alternative role, it should be offered to the woman on maternity leave.