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When a redundancy situation arises whilst an employee is on maternity leave, the employee has a right to be offered a suitable alternative vacancy (Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regulations). Failure to employ with this regulation will give rise to an automatically unfair dismissal.
Section 18 of the Equality Act 2010 makes it unlawful for an employer to discriminate (or treat "unfavourably") on grounds of pregnancy or maternity.
In the recent case of Sefton Borough Council v Wainwright UKEAT/0168/14, the EAT considered at what point in time the duty to offer a suitable alternative vacancy arises, in respect of a woman whose role becomes redundant while she is on maternity leave.
The Claimant, Mrs Wainwright, was employed by Sefton Borough Council as Head of Overview and Scrutiny from May 2001. She was made redundant in April 2013 but was on maternity leave from July 2012 until her dismissal.
As part of their restructuring plans, the council decided to combine two senior roles, including the role of the Claimant and Head of Member Services (carried out by Mr Pierce) into a new role of Democratic Services Manager. Both the Claimant and Mr Pierce were informed of the proposals and their risk of redundancy in July 2012. The new role was created in June 2012.
Both employees were invited to interview for the new role in December 2012. It was felt that Mr Pierce was the better candidate for the role and therefore he was offered the role. As she was not successful at interview, the Claimant was placed on the redeployment register, although she was neither offered nor expressed an interest in any vacancies. The Claimant was given three months' notice in January 2013 and was dismissed for redundancy.
The Claimant lodged an Employment Tribunal claim and successfully claimed breach of regulation 10 of the MPL Regulations, automatically unfair dismissal and direct discrimination under section 18 of the Equality Act 2010. The ET held that the Claimant had a right to be offered the role once they knew that there was a redundancy situation affecting her role. The ET confirmed that regulation 10 was an absolute right: if an appropriate role existed it should be offered and it was not for the employer to assess the employee's suitability for the role.
The Council appealed to the Employment Appeals Tribunal, on the grounds that:
1. The ET had wrongly equated breach of regulation 10 with breach of section 18 of the Equality Act 2010; and
2. The ET had erred in finding that the regulation 10 duty arose before December 2012, when a decision was finally made (as to the Claimant's place in the restructure).
The EAT allowed the Council to appeal on their first ground and therefore the EAT sent the case back to Employment Tribunal to decide whether there was evidence of direct discrimination. The alleged unfavourable treatment of the Claimant occurred whilst she was on maternity leave, but it was not caused by her taking maternity leave. The Tribunal therefore should have investigated the reasons for the council's treatment of the Claimant.
The EAT dismissed the second ground of appeal, broadly agreeing with the Tribunal's analysis of the nature of the regulation 10 duty.
Thoughts for employers
Employers should note the exact point in time when a redundancy situation arises during an employee's maternity leave and offer any suitable vacancies from that date onwards. It would be sensible for employers to regard their duty to provide alternative employment as arising when it first notifies the employee of the risk of redundancy.