Sefton Borough Council v Wainwright UKEAT/0168/14/LA
It is unlawful to discriminate because of pregnancy or maternity under section 18 of the Equality Act 2010. In addition, special rules apply where a woman on maternity leave is placed at risk of redundancy. Regulation 10 of the Maternity and Parental Leave Regulations 1999 provides that in such circumstances, the woman has a right to be offered a suitable alternative vacancy. Any failure to do so will make her redundancy automatically unfair.
In this case, the Employment Appeals Tribunal considered at what point the duty to offer a suitable alternative vacancy arises during a redundancy process.
The Claimant was the Respondent's Head of Overview and Scrutiny and took maternity leave from July 2012 to July 2013. Restructuring proposals were agreed in June 2012 which would combine the Claimant's role with that of Head of Member Services (held by Steve Pierce) to create a new role of Democratic Service Manager (DSM). The Claimant and Mr Pierce were both told that their positions were at risk of redundancy in July 2012, after the Claimant's maternity leave had begun. Both employees were qualified to perform the new role and in December 2012, both were interviewed for the role. At the end of the selection process, Mr Pierce was determined to be the better candidate and offered the new position and the Claimant was made redundant without being offered any other suitable alternative vacancies.
The Respondent accepted that the Claimant was suitable for the DSM role, that it was a suitable alternative vacancy under Regulation 10 of the Maternity and Parental Leave Regulations 1999 and that a breach of Regulation 10 would mean that the Claimant had been automatically unfairly dismissed under Regulation 20(1)(b) of the 1999 Regulations. However, the Respondent's argument was that the Claimant was not entitled to special treatment under Regulation 10 until the decision was taken as to who should be offered the DSM role as until then, her right was not engaged.
The Tribunal held that the right to be offered a vacancy under Regulation 10 arose when the redundancy situation affecting the employee's job became known, and ended either when the employee's notice expired or when her maternity leave ended.
Regulation 10 is an absolute right and all suitable available vacancies (and not merely the opportunity to apply for them) must be offered to the employee on maternity leave or her redundancy will be automatically unfair. On the facts therefore, the Tribunal held the Claimant's job was no longer available to her in July 2012 when she was put at risk. Once she was put at risk, thee new role of DSM was a suitable alternative vacancy which she was entitled to be offered. The Respondent's failure to slot her into the vacancy was a breach of Regulation 10 and the Claimant's dismissal was automatically unfair as an act of direct pregnancy and maternity discrimination.
The Respondent appealed to the EAT, arguing that the Tribunal had wrongly equated breach of Regulation 10 with breach of Section 18 of the Equality Act, and that the Tribunal had also erred in finding Regulation 10 applied before the interviews for the DSM role, since until the reorganisation had been completed and the decision made not to give her the DSM role.
The EAT agreed that the Tribunal had not properly investigated why the Claimant was treated as she was. The fact that she was on maternity leave at the time did not inevitably mean her treatment was because she was on leave. In many cases a finding that regulation 10 has been breached will also answer the question of whether there has been a breach of section 18. However, the facts of this particular case allowed for more than one answer and the case was remitted back to a Tribunal to decide if there was evidence of direct discrimination on the ground of maternity.
The EAT dismissed the second ground of appeal, pointing out that if the Respondent's argument that the duty to offer her any suitable alternative vacancy only applied once the restructuring had been completed and the only suitable alternative vacancy had been offered to someone else it would completely undermine the purpose of Regulation 10. Denying the DSM role was a vacancy because it was only open to a limited pool (in fact, the Claimant and Mr Pierce) as the Respondent was trying to do was not sustainable.
Regulation 10 does not define "vacancy" and does not expressly oblige an employer to offer every suitable vacancy. If the Respondent had offered the Claimant another suitable vacancy apart from the DSM position, it might well have complied with its regulation 10 duty.
Finally, Regulation 10 says that a woman has a right to be offered a suitable alternative vacancy. It does not say that she must be the best candidate for the job. The Claimant should have been offered the job without any selection process..
What to take away?
Being on maternity leave is not a shield against redundancy, but – as this case shows – the extra protection can be valuable, even if it is at the expense of the (male, in this case) candidate judged to be the best fit for the role. The case is clear that an employer should offer a suitable alternative vacancy as soon as it becomes aware that the employee's role is, or potentially is, redundant. However, it will not always be clear precisely when this point falls. (Here, the new role was created as part of the same restructuring so it was clear that it was available from the very start of the redundancy process.)
Although this case is about maternity leave, the same rights apply to those on additional paternity leave (Regulation 28(3) of the Additional Paternity Leave Regulations), adoption leave (Regulation 23(2) of the Adoption and Parental Leave Regulations) and shared parental leave (Regulation 39 of the Shared Parental Leave Regulations).