In Sefton Borough Council v Wainwright, Ms Wainwright was Head of Overview and Scrutiny. Following the commencement of Ms Wainwright’s maternity leave the Council started a reorganisation procedure which would result in redundancies. Ms Wainwright’s role was abolished together with her colleagues. Both roles would be replaced with a single role of Democratic Service Manager. Both employees were placed “at risk” and attended interviews for the new combined role. Ms Wainwright’s colleague was deemed better qualified for the position. Ms Wainwright was dismissed by reason of redundancy in April 2013.
Ms Wainwright claimed automatic unfair dismissal on the basis that the combined role was a suitable alternative vacancy which she should have been offered in line with the requirement in Regulation 10 of the Regulations. She also argued that the failure to offer the vacancy amounted to direct discrimination under s18 of the Equality Act 2010. The Tribunal found in Ms Wainwright’s favour on both points.
The Council appealed on both points. In relation to Regulation 10, the Council argued that the right to a suitable alternative vacancy did not arise until the candidate had been chosen for the new combined role. The EAT disagreed. It held that this would undermine the protection afforded by Regulation 10. The redundancy took place when the decision that the two roles would be combined took place. The Council argued that the decision was proportionate. The EAT acknowledged that Ms Wainwright may have not been the preferred choice but that she might have been offered another vacancy but no other offers had been made.
The EAT did allow the appeal relating to s.18. The Tribunal had erred in assuming that because Regulation 10 had been breached, s18 of the Equality Act 2010 had also been breached. The matter was remitted back to the Tribunal to decide if there had been a breach of s18.
This case suggests that not all decisions not to offer suitable alternative vacancies to employees on maternity leave will be discriminatory. The Tribunal should look at the reasons for the failure to determine whether they are related to the pregnancy or maternity of the employee.