Sefton Borough Council v Wainwright

Under regulation 10 of the Maternity and Parental Leave Regulations 1999, redundancy is assessed by reference to the statutory concept of redundancy, not by the employer’s chosen restructuring or redeployment process. Once the employee’s position is redundant, a suitable available vacancy must be offered without requiring competition with another employee. A vacancy may remain available even if it is open only to a limited pool.

A breach of regulation 10 does not automatically establish direct discrimination under section 18 of the Equality Act 2010. The tribunal must separately determine whether the unfavourable treatment was because of pregnancy, maternity leave or the exercise of maternity-leave rights.

The respondent local authority undertook a restructuring exercise involving the deletion of the claimant’s post and the creation of a Democratic Service Manager post. The claimant was on maternity leave. The respondent assessed both the claimant and another employee as suitable for the new role, but selected the other employee following an interview process and later made the claimant redundant without offering her a suitable alternative vacancy.

The Employment Tribunal upheld claims for breach of regulation 10 of the Maternity and Parental Leave Regulations 1999, automatic unfair dismissal and direct discrimination under section 18 of the Equality Act 2010. The respondent appealed, challenging both the regulation 10 finding and the conclusion on direct discrimination.

1. Regulation 10 and redundancy. The Employment Tribunal was entitled to find that the claimant’s post became redundant when the authority decided to delete two existing posts and replace them with one. “Displacement” and “redeployment” described the employer’s chosen process and could not postpone the statutory redundancy situation. Redundancy for regulation 10 purposes has the same meaning as under section 139 of the Employment Rights Act 1996. The regulation 10 ground of appeal was dismissed.
2. Suitable available vacancy. Availability is a question of fact. A post is not excluded from being a vacancy merely because it is open to a limited pool or because the employer prefers another candidate. The newly created Democratic Service Manager post was capable of being an available vacancy and, on the employer’s concession, was suitable for the claimant. The claimant was entitled to be offered a suitable available vacancy without a competitive selection process. The employer might have complied by offering another suitable vacancy, but it offered none.
3. Proportionality. The protection required by regulation 10 is the treatment reasonably necessary to avoid the disadvantage suffered by a woman on maternity leave in a redundancy-selection exercise. Requiring the claimant to compete for the new role was inconsistent with that protection. The principle in Eversheds Legal Services Ltd v De Belin [2011] IRLR 448 did not justify the respondent’s approach.
4. Section 18 discrimination. Regulation 10 and section 18 impose different requirements. A breach of regulation 10 does not inherently or automatically establish unfavourable treatment because of pregnancy or maternity leave. The tribunal had to ask the “reason why” the claimant was treated unfavourably. The Employment Tribunal had assumed that its regulation 10 finding answered that question and had made insufficient findings. The appeal on section 18 was allowed.
5. The section 18 claim was remitted to the same Employment Tribunal for reconsideration. Permission to appeal on the regulation 10 issue was refused. The respondent was awarded costs limited to £1,000.

• Employment Appeal Tribunal: dismissed the appeal concerning regulation 10 and automatic unfair dismissal; allowed the appeal concerning section 18 direct discrimination and remitted that claim to the same Employment Tribunal.
• Employment Tribunal: had upheld claims for breach of regulation 10, automatic unfair dismissal and direct discrimination.