Daniel Barnett: Can an employer arrange a redundancy process so as to determine when it is obliged to offer a suitable alternative vacancy to a redundant employee on maternity leave? No, held the EAT in Sefton Borough Council v Wainwright.
The Claimant was on maternity leave, and in a pool of two managers, the other male, facing redundancy as their roles were combined. The Council gave the combined role to the other manager ahead of her, making her dismissal automatically unfair under the Employment Rights Act.
The EAT rejected the Council’s distinctions between processes leading to ‘displacement’ or ‘redeployment’, and ‘redundancy’. For the purposes of Regulation 10 of the Maternity and Parental Leave Regulations, requiring employers to offer redundant employees on maternity leave suitable alternative employment, it was not for the employer to determine when the redundancy arose, the statutory definition of redundancy should be used, otherwise the protection of Regulation 10 could be undermined if employers abused their position to determine how redundancy processes run.
However, the EAT found that the employment tribunal erred in concluding that the breach of Regulation 10 in failing to offer the new post to the Claimant meant that it had committed maternity discrimination under S18 of the Equality Act. The employment tribunal had not fully considered the reason why the Claimant was not offered the alternative job, it was not inherently discriminatory to offer the job to a candidate better qualified than the Claimant. The matter was remitted to the same employment tribunal for reconsideration.
The EAT also ordered the Claimant to pay only part of the hearing fee award to the Council, exercising its discretion, as the appeal was only partly successful.