At what point does the duty to offer a suitable alternative vacancy arise, in respect of a woman whose role becomes redundant while she is on maternity leave?
In Sefton Borough Council v Wainwright UKEAT/0168/14, the EAT considered this point.
The Law
When a woman is on maternity leave and a redundancy situation arises, the woman has a right to be offered a suitable alternative vacancy (regulation 10 of the Maternity and Parental Leave Regulations 1999 (SI 1999/3312) (MPL Regulations)). Regulation 10 is an absolute right and failure to comply will render a dismissal automatically unfair.
Section 18 of the Equality Act 2010 (EqA 2010) makes it unlawful for an employer to discriminate on grounds of pregnancy or maternity.
The Facts
Mrs Wainwright was on maternity leave, as part of a restructuring exercise the Council decided to combine Mrs Wainwright’s role with that of her male colleague placing them both at risk of redundancy. The Council gave the combined role to the other manager ahead of Mrs Wainwright, making her dismissal automatically unfair under the Employment Rights Act.
Mrs Wainwright brought successful claims in the employment tribunal for breach of regulation 10 of the MPL Regulations, automatic unfair dismissal and direct discrimination under section 18 of the EqA 2010.
The employment tribunal rejected the Council's argument that the regulation 10 duty was only engaged once the restructuring exercise was complete and held that Mrs Wainwright had a right to be offered the role once the employer knew that there was a redundancy situation affecting her role.
The Tribunal pointed out that if a suitable vacancy existed, it should be offered and it was not for the employer to assess the employee's suitability through a competitive interview process.
The Council appealed to the EAT
Key points of EAT decision:
- The duty to offer a woman on maternity leave a suitable alternative vacancy under regulation 10 of the Maternity and Parental Leave Regulations 1999 (SI 1999/3312) arises when the employer becomes aware that her role is redundant or potentially redundant.
- Failure to engage this duty until after a redundancy or restructuring process was complete undermines the purpose of the legislation.
- Failure to offer a suitable alternative vacancy whilst rendering the dismissal of the woman automatically unfair does not necessarily mean that direct discrimination has taken place and in such circumstances the Tribunal had to consider the reason why the employee was not offered the role.
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