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It ain't right but it ain't (necessarily) discrimination - the EAT considers a failure to offer an alternative role during maternity leave

Most readers will know that where an employee’s role becomes redundant during maternity leave, she is entitled to be offered a suitable alternative vacancy (in preference to other candidates) if one is available.  This right attached to maternity leave derives from Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (“Regulation 10”) and is one of the few UK instances of lawful positive discrimination. 

In the case of Sefton Borough Council v Wainwright [2014] UKEAT 0168/14/LA, the Employment Appeal Tribunal considered two questions related to Regulation 10:

  1. In a restructuring process, at what point is an employee’s role redundant for the purposes of Regulation 10?  
  2. Does a breach of Regulation 10 in and of itself amount to direct discrimination because of maternity leave? 


The facts

The Clamant in this case was employed by the Respondent Council as Head of Overview and Scrutiny.  During 2012 the Council carried out a redundancy and reorganisation process.  As part of this process, the Claimant’s role and that of another, male colleague were abolished and replaced with the combined, Orwellian-titled role of Democratic Service Manager.  The Claimant and the male colleague were both notified that they were at risk of redundancy in July 2012 and they were both interviewed in December 2012.  At the time she was notified her role was at risk, the Claimant had just begun maternity leave.  It was decided that the male colleague was better qualified and in April 2013 the male colleague was offered the position and the Claimant was subsequently dismissed for reason of redundancy. 

At first instance, the Employment Tribunal concluded that there had been a breach of Regulation 10 and that the Claimant had been treated unfavourably because of her maternity leave, which constitutes direct discrimination under section 18 of the Equality Act (“Section 18”).


At what point was the Claimant’s role redundant?

At appeal, the Council argued that the Tribunal erred in finding that Regulation 10 came into play before the interviews for the new role.  Instead, the Council asserted that the Claimant’s role was not redundant until April 2013 when the decision was made not to offer her the new role.  At that point, there were no suitable alternative vacancies and therefore, in the Council’s view, no breach of Regulation 10.           

The EAT did not uphold this point of appeal and found that, on the facts, the Tribunal was entitled to conclude that there was a redundancy situation when the Council decided that the two positions would be deleted from its structure and replaced by one.  The requirements of the Council for employees to carry out work of that particular kind had ceased or diminished, or were expected to do so.  The fact that the new position was available for one of them to take did not mean that either of their positions was not redundant.    


Was the failure to offer a suitable alternative role discriminatory?

The Council further argued at appeal that the Tribunal was wrong to assume that a breach of Regulation 10 meant that there was inevitably direct discrimination in breach of Section 18.  On this point the appeal was upheld and it was concluded that the Tribunal fell into error.  The Tribunal should have asked the “reason why” the Claimant was not offered a suitable alternative vacancy and not simply assumed that a breach of Regulation 10 was therefore discriminatory on the grounds of maternity.  The case was remitted to the Tribunal to re-hear this point. 



On the redundancy question, the case is fairly unremarkable.  The Council’s arguments here strike me as a bit of wheeze -  I just cannot see how, from a legal or a public policy perspective, it could be the case that an employee is only redundant when the opportunity of a suitable alternative role is not given to them.  The EAT was right to point out that such an argument would serve to undermine the protection afforded by Regulation 10. 

However, this case does provide useful confirmation that there is a distinction between a Regulation 10 claim and a direct discrimination claim under Section 18.  The significance of the distinction is that a breach of Regulation 10 gives rise to an unfair dismissal claim, for which compensation is capped at the lesser of £76,674 and a year’s pay, while direct discrimination leads to an uncapped claim. 

I should also point out that in the forthcoming Brave New World of Shared Parental Leave, Regulation 39 of the Shared Parental Leave Regulations 2014 affords employees on SPL the same protection as Regulation 10 affords those on maternity leave. 

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