Failure to offer suitable alternative vacancy to woman on maternity leave not necessarily discriminatory

24 November 2014

Felicia Epstein’s commentary on the case.

In Sefton Borough Council v Wainwright the employer embarked on a redundancy and reorganisation process. It proposed to abolish the Claimant, W’s role, and that of P, a man, and replace them with a new role. In July 2012, when W had just commenced maternity leave, W and P were both notified that they were at risk of redundancy. The employer interviewed W and P for the new role in December 2012. It decided that P was the better candidate and offered him the new role. W was given notice of redundancy in January 2013 and her dismissal took effect in April 2013.

W argued that her employer should have offered her the new role and its failure to do so rendered her dismissal automatically unfair. She also argued that it amounted to direct discrimination because she was on maternity leave. The employment tribunal upheld both claims, found that she was unfairly dismissed. The employer appealed to the Employment Appeal Tribunal.

The EAT held that it is not necessarily discriminatory for an employer to fail to comply with the requirement under Reg 10 of the Maternity and Parental Leave Regulations 1999 to offer a suitable alternative vacancy to a woman selected for redundancy while on maternity leave. Although the claimant was treated unfavourably while on maternity leave, in that she was selected for redundancy and not offered an alternative role, the treatment was not necessarily ‘because of’ pregnancy or maternity leave, as S.18 of the Equality Act 2010 requires.