Sefton Borough Council v Wainwright
The Employment Appeal Tribunal (“EAT”) has confirmed that an employer cannot arrange a redundancy process so as to determine when it is obliged to offer a suitable alternative vacancy to a redundant employee on maternity leave.
The Claimant was on maternity leave, and in a pool of two managers, the other male, facing redundancy as their roles were combined. The Council gave the combined role to the other manager ahead of her, making her dismissal automatically unfair under the Employment Rights Act.
The EAT rejected the Council’s distinctions between processes leading to ‘redeployment’ and ‘redundancy’. For the purposes of Regulation 10 of the Maternity and Parental Leave Regulations, requiring employers to offer redundant employees on maternity leave suitable alternative employment ahead of other employees, it was not for the employer to determine when the redundancy arose. The statutory definition of redundancy should be used, otherwise the protection of Regulation 10 could be undermined if employers abused their position to determine how redundancy processes run.
However, the EAT said that the breach of Regulation 10, in failing to offer the new post to the Claimant, did not mean that it had committed maternity discrimination. It was not inherently discriminatory to offer the job to a candidate better qualified than the Claimant.
In Practice
Regulation 10 of the Maternity and Parental Leave Regulations is often not known about or forgotten by employers. This case highlights the fact that employers, when making redundancies involving employees on maternity leave, should, in effect, positively discriminate in favour of the pregnant employee when determining who should be offered suitable alternative employment. Paul Burton Employment Associate, says”If you are facing this situation it is always best to obtain more detailed legal advice.”
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.
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