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Maternity Discrimination does not automatically occur in a breach of Maternity Regulations

If a woman is on maternity leave and her job is identified as redundant, then under Reg 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regs), she is ‘entitled’ to be offered any suitable alternative vacancy that is available where that job is appropriate for her to do in the circumstances and where the role, place of employment and the other terms and conditions of her employment, are not substantially less favourable than in her old job.

If a woman is on maternity leave and her job is identified as redundant, then under Reg 10 of the Maternity and Parental Leave Regulations 1999 (MPL Regs), she is ‘entitled’ to be offered any suitable alternative vacancy that is available where that job is appropriate for her to do in the circumstances and where the role, place of employment and the other terms and conditions of her employment, are not substantially less favourable than in her old job. The term ’entitled’ means she has priority over other employees at risk of redundancy. A failure to comply with Reg 10 makes a resulting dismissal automatically unfair. Under S.18 of the Equality Act 2010 (EA 2010) it is unlawful for an employer to discriminate against a woman because of pregnancy or maternity leave.

In Sefton Borough Council v Wainwright, while Mrs Wainwright was on maternity leave, a restructuring exercise took place. Two senior roles, one of which was held by Mrs Wainwright, and the other by Mr Pierce, were combined, meaning that the two ‘old’ roles had ceased, creating a redundancy situation and that one new job had been created. Pierce and Wainwright were interviewed for the newly-created role, but Pierce was given the job as he was considered the better candidate. Wainwright was made redundant. An employment tribunal upheld Wainwright’s claims for breach of Reg 10 MPL Regs and S.18 EA 2010. Reg 10 provided Wainwright with an ‘absolute right’ to be offered the new role as it was ‘suitable’ within the requirements of the statutory provision and it was not open to the employer to assess her suitability by way of a competitive interview process. The employer’s failure to offer Wainwright the job was a breach of Reg 10, making the dismissal automatically unfair and consequentially an act of direct pregnancy and maternity discrimination. The EAT dealt with two points on appeal.

Point 1: On the basis of the facts in this case and the reasons given, the EAT held it was entirely legitimate for the tribunal to find there had been a breach of Reg 10 MPL Regs [a key learning point for employers].  However, it rejected the employer’s argument that the duty to offer Wainwright a suitable alternative vacancy only arose when the restructure was complete and she had not been offered the newly created role. That contention would undermine the whole purpose of Reg 10 and it was simply not viable to argue that the new role could not be regarded as a vacancy because consideration for the person to be appointed had been limited to just two people.

 

Point 2: The EAT upheld the employer’s argument that the tribunal was wrong to draw the automatic conclusion that a breach of Reg 10 MPL Regs was a breach of S.18 EA 2010. Under S.18 a woman has to demonstrate unfavourable treatment ‘because of’ pregnancy or maternity leave. Here, the unfavourable treatment (the failure to offer Wainwright the suitable alternative job) certainly coincided with her being on maternity leave but that did not inevitably mean that it was ‘because of’ it.  The tribunal’s failure to establish the reason why Wainwright had been treated in the way she had been, was an error of law. 

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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