A failure to offer a suitable alternative vacancy to an employee who has been made redundant while on maternity leave is not necessarily direct pregnancy/maternity discrimination. The ET should consider the reason why the employee was not offered the suitable alternative vacancy.
Mrs Wainwright (“W”) was employed by Sefton Borough Council as Head of Overview and Security. As part of its restructuring process the Council decided to combine her role with that of a colleague, P, in the new post of Democratic Service Manager (DSM). Both W and P were informed of the situation and subsequently interviewed for the new DSM role. P was appointed and W was dismissed for the reason of redundancy. Throughout this period W was on maternity leave.
The ET held that W should have been offered the DSM role as a suitable alternative vacancy under regulation 10 of the Maternity and Paternity Leave Regulations 1999. The Council’s failure to do so rendered her subsequent dismissal automatically unfair. The ET further held that the Council’s treatment of W constituted direct pregnancy/maternity discrimination under section 18 of the Equality Act 2010.
The Council appealed both of these findings.
The ET had been entitled to find that W was redundant from the point at which it was decided her position was to be deleted. As a result the Council had been obliged to offer her the DSM role as a suitable alternative vacancy. The Council submitted that W was only entitled to protection under regulation 10 after the restructuring was complete (when P had been appointed to the DSM role and W herself had been placed in the redeployment pool). It was submitted that this was a proportionate approach which would go no further than reasonably necessary in protecting the Claimant’s interests. The EAT disagreed. Such an approach could undermine the protection offered by regulation 10 in that it allowed the employer to determine when a redundancy occurs. The relevant question was when W’s position was redundant (as defined in section 139 of the Employment Rights Act 1996). Responding to the Council’s proportionality point, the EAT said that the Council was not obliged to offer W any particular suitable alternative vacancy. The Council might still have been able to appoint P to the DSM post, if W had been offered a different suitable alternative role.
The ET erred in assuming a breach of regulation 10 automatically meant there had been direct pregnancy/maternity discrimination. Regulation 10 obliges an employer to offer an employee on maternity leave special protection. Section 18 merely prohibits unfavourable treatment because of pregnancy or maternity leave. W was made redundant and not offered a suitable alternative vacancy while she was on maternity leave, but she was not necessarily treated in this way because she was on maternity leave. The ET had failed to consider the reasons for her treatment. The discrimination claim was remitted to the ET for further consideration.
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