Case Alert: The Duty to Offer an Alternative Vacancy to Women on Maternity Leave

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What happened?

In Sefton Borough Council v Wainwright, the Employment Appeal Tribunal (EAT) held that employers must offer a woman on maternity leave a suitable alternative vacancy when they first become aware that her role is redundant or potentially redundant. Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regulations) places this duty on employers; however, the regulation does not specify exactly when the offer must be made, and until this case that remained unclear.

Mrs Wainwright was on maternity leave when she was dismissed for redundancy by Sefton Borough Council (the Council) in April 2013. The Council began planning a restructuring in 2010 and as part of this process two senior roles were combined into one new role. The two affected employees, Mrs Wainwright and Mr Pierce, were informed that they were at risk of redundancy in December 2012 and both were invited to apply and interview for the newly-created role. Mr Pierce was considered the stronger candidate and offered the position whilst Mrs Wainwright was placed on the redeployment register and later dismissed by reason of redundancy. She subsequently brought successful claims in the employment tribunal for breach of regulation 10 of the MP Regulations, automatically unfair dismissal and direct discrimination.

The Council appealed to the EAT arguing that the duty to offer Mrs Wainwright a suitable alternative vacancy only arose when they had completed their restructuring. The EAT rejected this argument in favour of the employment tribunal’s decision. Mrs Wainwright had the right to be offered the new role in December 2012, once the Council knew that there was a redundancy situation affecting Mrs Wainwright’s role.

What does this mean?

Regulation 10 of the MPL Regulations was deemed to be an absolute right. If a suitable vacancy exists then it should be offered to an employee on maternity leave even if she is not the best candidate for the job. The employer must offer the role as soon as it becomes aware that the employee’s role is redundant or potentially redundant. The difficulty arises when determining how likely the redundancy needs to be in order for the duty to be triggered.

What should we do?

Employers should carefully consider the exact moment in time when a redundancy situation arises. As a general rule employers should regard the duty as arising when they first notify the employee that she could be at risk of redundancy. The employee should be offered any suitable alternative role at this point. If employers are presented with a situation similar to the one facing the Council they should offer the suitable vacancy to the employee on maternity leave. It is not for the employer to assess the employee’s suitability through a competitive process.

 

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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