LEGAL CORNER: Employee on maternity leave discriminated against when not offered a job after a restructure

24th Dec 2014

In Sefton Borough Council v Wainwright UKEAT/0168/14 the Employment Appeal Tribunal grappled with the often complex issue of how employees should be treated when a redundancy exercise is carried out whilst they are on maternity leave.

Mrs Wainwright had been employed by the Council since 2001. The council had commenced a management restructuring process in 2011 in the face of budget cuts, and by 2012 came up with a new structure, which merged Mrs Wainwright’s position as Head of Overview and Scrutiny with the position of Head of Member Services (held by a Mr Pearce) into a new role of Democratic Service Manager. By the time this decision was made, Mrs Wainwright had commenced a period of maternity leave. Both Mrs Wainwright and Mr Pearce were notified that they were at risk of redundancy. Both employees were considered equally qualified for the new position and therefore the Council went through a selection process and interviewed them both. It decided that Mr Pearce was the better candidate and he was offered the job. Mrs Wainwright was given three months notice and was told of her right to be redeployed, but no suitable alternative positions were found.

Mrs Wainwright brought a claim in the employment tribunal alleging principally that she had been discriminated on the grounds of being on maternity leave contrary to the Maternity and Parental Leave Regulations 1999 (‘the Maternity Regulations’). Under Regulation 10 of the Maternity Regulations, where a situation arises whereby it is no longer possible to employ an employee who is on maternity leave by reason of redundancy, she is entitled to be offered a suitable alternative vacancy (if one exists) which is not substantially less favourable to her than her previous role.

Mrs Wainwright argued that her position was redundant as at the time when the decision was taken to delete her previous role, and that therefore she should either have been offered the new role without any competition with Mr Pearce or offered another suitable alternative role if there was one – which, on the facts, there was not. Therefore, in this case, she argued that she should not have had to compete for the new role but should have been offered it outright in order for the council to meet its obligations under the Maternity Regulations.

The Council argued that its responsibility to offer Mrs Wainwright a suitable alternative position did not bite until the restructure had been completed and a decision had been taken as to which of Mrs Wainwright and Mr Pearce had been offered the new role. Until then there was not a ‘vacancy’ as such for the new position as it was not open to all. The Council accepted that once a decision was made not to offer Mrs Wainwright the new position, she was entitled to more favourable treatment whilst being considered for redeployment, for example by being offered suitable alternative employment in favour of other, possibly better suited, candidates.

This argument was rejected by the tribunal and indeed by the Employment Appeal Tribunal. The EAT accepted that the Council’s argument, if it were to succeed, would undermine the protection afforded under the Maternity Regulations as an employer could undertake a restructure, slot in other members of staff but not an employee on maternity leave, and then find that there was no suitable alternative employment  for her when she returned. The EAT made clear that the Council did not have an obligation to offer the new position to Mrs Wainwright, only to offer her a suitable position. They could have met that requirement by offering her an alternative position if one had been available. However, where there was none, it was proportionate to oblige the Council to offer her the new position.

The EAT also made clear that the obligation on an employer is to do that which is reasonably necessary to afford the statutory protection to the woman who is pregnant or on maternity leave. Doing more than is reasonably necessary would be disproportionate and puts the employer at risk of unlawfully discriminating against others.

In this situation, employers need to remind themselves that the protection is afforded to women on maternity leave because of the particular disadvantage that they face in engaging in a redundancy selection process and competing for jobs when they are absent from work and have a young child to care for.

Safia Tharoo
, Barrister, 42 Bedford Row, London

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