Maternity discrimination: Duty to offer a suitable alternative vacancy to a woman on maternity leave arises when employer becomes aware of redundancy
Published 17 December 2014
In this case the EAT considered when the duty to offer a woman on maternity leave a suitable alternative vacancy, whose role becomes redundant, arises.
Mrs Wainwright was employed by Sefton Borough Council (the Council) from May 2001 to April 2013, when she was dismissed for redundancy. She was on maternity leave from July 2012 until her dismissal. The Council began planning redundancies in late 2010, although it did not implement these until 2012. As part of a restructuring exercise, the Council decided to combine two senior roles, into a new role of Democratic Services Manager (DSM) which had been created in June 2012. Mrs Wainwright's, role, and another role, carried out by Mr Pierce, would be deleted. Both Mr Pierce and Mrs Wainwright were notified in July 2012 that they were at risk of redundancy. In December 2012, the Council invited Mr Pierce and Mrs Wainwright to apply and interview for the newly-created DSM role. Mr Pierce was considered the better candidate and was offered it. Mrs Wainwright was placed on the redeployment register, although she was neither offered nor expressed an interest in any vacancies, as, after losing out on the DSM role, she had lost interest in working for the Council. Mrs Wainwright was given three months' notice in January 2013 and was dismissed for redundancy.
Mrs Wainwright brought successful claims in the employment tribunal for breach of regulation 10 of the Maternity and Parental Leave Regulations 1999, automatically unfair dismissal and direct pregnancy/maternity discrimination under section 18 of the Equality Act 2010. The employment tribunal rejected the Council's argument that the regulation 10 duty was only engaged once the restructuring exercise was complete. It 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, which in this case was in July 2012. It pointed out that regulation 10 was an absolute right: if a suitable vacancy existed, it should be offered and it was not for the employer to assess the employee's suitability for it through a competitive interview process.
The Council appealed to the EAT complaining that the employment tribunal had erred in finding that the regulation 10 duty arose before Mrs Wainwright was put at risk of redundancy; and secondly that the employment tribunal had wrongly decided that the breach of regulation 10 also meant that pregnancy/maternity discrimination had occurred without further investigation.
The EAT allowed the first ground of appeal, remitting the case for an employment tribunal to decide whether there was evidence of direct discrimination. The EAT found that although 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 maternity leave. The tribunal should have investigated the reason why Mrs Wainwright was treated the way she was: the facts of this case allowed for more than one answer.
In terms of when regulation 10 bites the Council argued that the duty to offer Mrs Wainwright a suitable alternative vacancy only arose when the reorganisation had been completed and the decision had been made not to slot her into the DSM role. It argued that the role arising out of the restructure was not a vacancy in the conventional sense, as it was not available to a pool wider then Mrs Wainwright and Mr Pierce. They continued that to give Mrs Wainwright advantageous treatment before she was formally put in the redeployment pool would inflict injustice on her male colleague. However, the EAT rejected the Council's arguments in their entirety. It found that it was not sustainable to argue that the DSM role was not a vacancy simply because it was only open to a limited pool. They noted that regulation 10 does not define "vacancy", and it was open to the tribunal to find that the DSM role was a vacancy that was, on the Council's own assessment, suitable for Mrs Wainwright. The EAT accepted that regulation 10 does not expressly oblige an employer to offer every suitable vacancy, or indeed any particular vacancy if more than one might be suitable. However, in this case no vacancies had been offered. Had the Council offered Mrs Wainwright another suitable vacancy they might have complied with their regulation 10 obligation.
What this means for employers
This case makes it clear that the duty to offer any suitable available vacancy arises when an employer first notifies the employee that she may be at risk. In this case, two distinct roles were being eliminated, and the employee on maternity leave benefitted from this duty as soon as she was placed at risk. In a classic pooling and selection exercise (where the roles being eliminated are identical or otherwise interchangeable), in our view the duty should apply only once an employee on maternity has been provisionally selected for redundancy. One way to limit the regulation 10 risk is to postpone restructures until women return from maternity leave when they lose this right. However, this may well be impractical given the need to run the organisation efficiently and it is also notable that the same duty will apply from April 2015 to parents taking Shared Parental Leave. More positively the case shows that tribunals should not assume that an employer's failure to comply with regulation 10 is also pregnancy/maternity discrimination. As with all protected characteristics, an employer must be given a chance to show why the treatment was not discrimination.