(Sefton Borough Council v Wainwright)
Where a woman is on maternity leave and a redundancy situation arises, the woman has a right to be offered a suitable alternative vacancy, by virtue of regulation 10 of the Maternity and Parental Leave Regulations 1999 (“Regulation 10”). Section 18 of the Equality Act 2010 (EqA 2010) makes it unlawful for an employer to discriminate on grounds of pregnancy or maternity.
In this case, the EAT held that the duty to offer a woman on maternity leave a suitable alternative vacancy under Regulation 10 arises when the employer becomes aware that her role is redundant or potentially redundant. If the duty was not engaged until after a redundancy or restructuring process was complete, this would undermine the purpose of the legislation.
The EAT also held that while failure to offer a suitable alternative vacancy will render the dismissal of the woman automatically unfair under Regulation 10, it does not necessarily mean that direct discrimination has also taken place under Section 18 of the EqA.
Mrs Wainwright was employed by Sefton Borough Council and was on maternity leave when her employer undertook a restructuring process to cut their costs. The Council sought to combine Mrs Wainwright’s role with a male employee’s, who had the same grade. Both employees were interviewed for the new role in December 2012, which resulted in the Council’s decision that the male employee was better suited to the role. As a result, they offered Mrs Wainwright three months’ notice of her dismissal, and gave her the option to be employed elsewhere within the Council. Mrs Wainwright was not interested in the roles offered. She claimed that her dismissal was discriminatory due to her pregnancy and maternity status, and that it was also automatically unfair because the Council had breached its obligations under Regulation 10.
The Tribunal found in favour of Mrs Wainwright on all counts. The Council subsequently appealed to the EAT.
The EAT dismissed the Council’s appeal in relation to the Regulation 10 claim. However, the EAT held that whilst the unfavourable treatment of Mrs Wainwright coincided with her being on maternity leave, that did not inevitably mean it was caused by her having taken leave and was therefore discriminatory (in breach of Section 18 of the EqA). The tribunal should have investigated the reason why Mrs Wainwright was treated the way she was. The EAT remitted this question back to the tribunal to decide.
Sara Sawicki Says: It is surprising how little case law there is on the Regulation 10 duty, particularly on the point of when the duty arises. This decision suggests that employers should note the exact point in time when a redundancy situation arises and offer any suitable vacancies from that point onwards. As a general rule, it would seem sensible for the employer to regard the duty as arising when it first notifies the employee that she may be at risk.
By being on maternity leave, the application of Regulation 10 does not offer a woman absolute protection against being considered for redundancy. However, in a restructure situation where suitable alternative vacancies are created, this will effectively amount to the same thing. In this case, Mrs Wainwright’s right to be offered the only vacancy in the proposed new structure effectively amounted to removing her from the redundancy pool altogether.