Employee on maternity leave selected for redundancy not offered alternative role

21 November 2014

An employer’s failure to offer an alternative role to an employee selected for redundancy while on maternity leave was adjudged to be automatically unfair.


We are grateful to Pinsent Masons for their report on the Employment Appeals Tribunal (EAT) decision in the case of Sefton Borough Council v Wainwright:

 

The EAT ruled that an employer who had failed to offer a suitable alternative role to an employee selected for redundancy while on maternity leave was in breach of its obligation under Regulation 10 of the Maternity and Parental Leave Regulations 1999 ("Reg. 10"). Reg. 10 requires employers to offer a "suitable available vacancy" to women being made redundant whilst on maternity leave, and failure to comply leads to a finding of automatically unfair dismissal. The EAT further decided however, that it is not necessarily discriminatory for an employer to fail to comply with Reg. 10. In this instance, whilst the claimant had been treated unfavourably, the treatment was not "because of" her pregnancy or maternity leave, as is prescribed by the conditions for direct discrimination under the Equality Act 2010 ("EqA").

The claimant ("W") had been employed by a local authority ("the Council"), as Head of Overview and Scrutiny. Faced with having to make budget cuts, the Council initiated a redundancy and reorganization procedure in 2012. As part of the restructuring process, the Council proposed to abolish the roles of W and a male employee ("P"), and replace them with a combined role of Democratic Service Manager ("DSM").

In July 2012, W and P were notified that their positions were at risk of redundancy. At this point, W had commenced her maternity leave. In December 2012, the Council interviewed both P and W for the DSM role and decided that P was better qualified for the new role, and offered him the position. On 8 January 2013, W was given three months’ notice of redundancy and was dismissed as redundant in April 2013.

W brought a claim for unfair dismissal, alleging that the DSM role was a suitable available vacancy, which the Council was obliged to offer her under Reg. 10. W also brought a claim for discrimination. The ET upheld both claims, deciding that, where there is a suitable available vacancy, it must be offered to the employee on maternity leave. The Council's failure to do this meant that W's subsequent dismissal was automatically unfair and an act of direct pregnancy and maternity discrimination.

The Council appealed on both grounds, arguing that W's right under Reg. 10 had not been triggered until a decision had been made with regards to who would be a more suitable candidate for the DSM role. Essentially, W could not have been deemed to have been made "redundant" for the purpose of Reg. 10, until the Council actually made the decision as to who would get the position.

The EAT dismissed this appeal. Applying the Council's interpretation would undermine the protection offered by Reg. 10. The ET did not err in its conclusion that there was a redundancy when the Council decided that the two positions would be replaced by one. The EAT commented that a proportionate response to W's circumstances would have been for the Council to offer her another position if they preferred to give the DSM role to P. This was not the case however, with the only suitable available vacancy being the DSM role which, when offered to P, put the Council in breach of Reg. 10.

The EAT did however uphold the Council's appeal in relation to the direct discrimination claim. The ET had not asked the reason why W had been treated the way she was. It followed that the ET was incorrect in assuming that a breach of Reg. 10, inherently equated to a form of discrimination. The EAT accepted that, whilst W had been treated unfavourably and this coincided with her being on a relevant period of maternity leave; this treatment was not necessarily "because of" her pregnancy or maternity leave and therefore fell short of the conditions required under EqA. The EAT has remitted this part of the claim back to the same ET for a decision.