Case update (3): Family (un)friendly: maternity leave and redundancy

Summary: At what point in time does the duty to offer a suitable alternative vacancy arise in respect of a woman whose role becomes redundant while she is on maternity leave?

When the employer becomes aware that her role is redundant or potentially redundant, says the EAT in Sefton Borough Council v Wainwright, available here.

Facts: The employer decided that two positions, including the employee’s existing job, would be deleted from its structure and replaced by a single (newly created) position. This new role was created in July 2012. The employee (who was on maternity leave) and the person who had occupied the other redundant position, were notified in July 2012 that they were at risk of redundancy. In December 2012 they were both interviewed for the new role. The employee’s colleague was found to be the better candidate and was offered the job. No other vacancies were offered to the employee and she was subsequently made redundant.

The employee brought Tribunal claims for (1) breach of her right to be offered a suitable alternative vacancy (regulation 10 of the Maternity and Parental Leave Regulations 1999) which rendered her dismissal automatically unfair and (2) direct sex discrimination.

The Tribunal upheld the employee’s claim of automatic unfair dismissal on the basis that the employer had failed to comply with its duty to offer her a suitable vacancy where one was available (i.e. the newly created job). The Tribunal rejected the employer’s argument that the duty was only engaged once the restructuring exercise was complete. The Tribunal held that the employee had the right to be offered the role once the employer knew that there was a redundancy situation affecting her role, in July 2012.

The Tribunal 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 employer appealed. The EAT dismissed the appeal in respect of the regulation 10 duty and automatic unfair dismissal, broadly agreeing with the Tribunal’s above analysis. The EAT agreed that the employee’s regulation 10 right arose as soon as the employer decided that her existing job would be deleted, as nothing could save her job by that point.

However, the EAT overturned the Tribunal’s decision that the failure to offer the vacancy also constituted maternity and sex discrimination contrary to the Equality Act 2010: the question was rather whether the reason for not offering a suitable alternative vacancy was that the employee was on maternity leave.

Implications: This decision clarifies the danger in a restructuring exercise of requiring someone on maternity leave to compete for redeployment into a new role. The decision further suggests that employers should record the exact date and time when a redundancy situation arises and offer any suitable vacancies from that point onwards. This may well be when the employer first notifies the employee that she may be at risk.

In respect of which vacancy/s to offer the employee the EAT’s decision seems to be that if there is a suitable vacancy for which the employee is the only appropriate candidate, that is the vacancy that should be offered to her in order to comply with the employer’s duty under regulation 10. However, if the employee is interested in other vacancies she should be considered for those positions alongside other interested employees and the employer should act ‘proportionately’ by balancing the interests of all those employees so as to avoid discrimination claims.

Please note that in respect of a straightforward redundancy due to a reduction in the number of employees doing a particular type of work, there is no right to be given preference in the redundancy selection exercise. In these circumstances the right to be offered a suitable available vacancy would most likely arise once the employer has carried out the selection exercise.