Labour & European Law Review Weekly Issue 401 07 January 2015
Section 10 of the Maternity and Parental Leave etc. Regulations 1999 requires employers to offer women a suitable alternative job if their post is made redundant whilst they are on maternity leave. In Sefton Borough Council v Wainwright, the Employment Appeal Tribunal (EAT) held that the obligation under section 10 arises when the job the woman does is redundant or potentially redundant.
Faced with having to make budget cuts, the Council decided to combine Ms Wainwright’s post as Head of Overview and Scrutiny with that of the Head of Member Services Mr Steve Pierce to create a new post of Democratic Service Manager (DSM). They were both formally told that their jobs were at risk of redundancy in July 2012, by which stage Ms Wainwright had gone off on maternity leave.
The employer went through a selection process and Ms Wainwright and Mr Pierce were both interviewed for the post. Mr Pierce was offered the job. Ms Wainwright was given three months’ notice of redundancy in January 2013 and informed of her right to be redeployed. She did not express an interest in any other positions nor were any suitable alternative vacancies offered to her. She was dismissed on 15 April. Ms Wainwright claimed that the dismissal was automatically unfair under section 10 of the Maternity and Parental Leave Regulations and that the failure to offer her the job was directly discriminatory under section 18 of the Equality Act 2010.
The Council argued that Ms Wainwright was not entitled to special treatment under section 10 until the restructure was complete and Mr Pierce had been slotted into the new position.
Section 10 states that where a woman is on maternity leave and a redundancy situation arises she has a right to be offered a suitable available vacancy.
Section 18 of the Equality Act states that it is discriminatory to treat a woman who is pregnant or on maternity leave unfavourably because she has exercised her right to go on leave.
The tribunal held that, as section10 gave rise to an absolute right, Ms Wainwright should have been offered the suitable available vacancy when it became available in July 2012, as opposed to just being given the opportunity to apply for it.
The Council’s failure to slot her into the vacancy meant that her dismissal was automatically unfair as it was an act of direct pregnancy and maternity discrimination, contrary to section 18 of the Equality Act 2010. The Council appealed on both grounds.
The EAT rejected the argument that Ms Wainwright was only “displaced” (and therefore entitled to protection under section 10) once Mr Pierce had been slotted into the new post. It was not for employers to decide when a redundancy occurs (and therefore when the obligation arises). That was for tribunals to decide by reference to section 139 of the Employment Rights Act 1996.
This tribunal was therefore entitled to conclude that there was a redundancy when the Council decided that two jobs would be deleted from its structure and replaced by one. The tribunal was also entitled to conclude that the new post constituted a vacancy that was suitable for Ms Wainwright. That did not mean that the Council had to offer her that vacancy if there were others that were suitable. However, in this case it did not make any offer, despite the fact that the new post was a suitable alternative for her.
The tribunal had, however, made a mistake when it assumed that its finding on section10 answered the section 18 discrimination claim. Instead it should have asked why Ms Wainwright was treated as she was. Although the unfavourable treatment coincided with her maternity leave, that did not mean it was “because of it”. The EAT therefore remitted that question to the same tribunal for further consideration.
This decision makes clear that employers cannot wait until the selection process has been completed before offering a woman on maternity leave a suitable alternative vacancy where her post has been deleted or is potentially redundant. This is a welcome clarification and the EAT refused to grant the employers application for leave to appeal to the Court of Appeal.
It should also be noted that the same protection applies to those on shared parental leave under the new Shared Parental Leave Regulations which came into force on 1 December 2014.