The recent case of Sefton Borough Council v Wainwright clarified the position. This case is especially relevant to employers who propose making redundancies in connection with a restructuring process.  

Mrs Wainwright was employed by the Council from May 2001 and she went on her third period of maternity leave in July 2012. As part of the management restructure, which the Council began planning in 2010, a new position was created in June 2012, which combined Mrs Wainwright’s role with that of her male colleague. Both Mrs Wainwright (who was already on maternity leave) and her male colleague were notified they were at risk of redundancy in July 2012. She was dismissed for redundancy in April 2013. The Council accepted that Mrs Wainwright was qualified for the combined role and had she been the only employee affected, she would have been slotted into that role. This was, however, not the position that Council faced and it therefore decided to put Mrs Wainwright and her male colleague through a selection process. They were both interviewed in December 2012 for the position. The Council’s view was that the male candidate was better qualified for the role and so it offered the position to him and made Mrs Wainwright redundant following a 3 month notice period from January 2013.  

Mrs Wainwright brought successful claims in the Employment Tribunal (“ET”) for automatically unfair dismissal and discrimination. The Council appealed to the Employment Appeal Tribunal (“EAT”) which agreed with the ET in that Mrs Wainwright was automatically unfairly dismissed, but remitted the discrimination claim to be re-heard by the ET (on a causation point).  

The legal position is that if a redundancy situation arises during a woman’s maternity leave she is entitled to be offered a suitable alternative vacancy (on no worse terms than she enjoyed before she went on leave). If two employees are at risk of redundancy, one of whom is on maternity leave and one is not, priority must be given to the woman on maternity leave. Failure to do so will put the employer at risk of an automatic unfair dismissal claim (where the employee does not need a 2 year qualifying period of service in order to bring a claim) and potentially a discrimination claim. But when does the duty to offer a suitable alternative vacancy arise?  

The Council argued that this duty was not engaged until after the restructuring was complete. Mrs Wainwright argued she should have been offered a role as soon as the new vacancy arose.  

The EAT sided with Mrs Wainwright as it felt that if the duty was not engaged until after a redundancy or restructuring process was complete, it would undermine the purpose of the legislation, designed to protect working mothers. It held that the duty arises when the employer becomes aware that a woman’s role is redundant or potentially redundant.  

It would therefore seem sensible for the employer to regard this duty as arising when it first notifies the woman that she may be at risk of redundancy, regardless of whether or not the redundancy situation arose out of a restructure exercise that had been planned in advance.  

The EAT pointed out that this was an absolute right, so if a suitable alternative vacancy exists, it must be offered to the woman on maternity leave first. The employer should not assess her suitability through a competitive interview process.