21 November 2014 #Employment
When it becomes apparent during maternity leave that the employee’s role is redundant, at what point does the obligation to offer suitable alternative employment arise under regulation 10 of the Maternity and Parental Leave Regulations 1999? Could it be when the restructuring is complete, which could be when the employee is returning from maternity leave or even after her return, which could then render regulation 10 of no effect?
The answer, confirmed by the EAT in Sefton Borough Council v Wainwright UKEAT/0168/1, is no, the obligation arises when the employer first becomes aware that the employee’s role is redundant or potentially redundant. The EAT found that if the duty was not engaged until after a redundancy or restructuring process was complete, this would undermine the purpose of the legislation. However, the EAT went on to find that whilst a failure to offer a suitable alternative vacancy will render the dismissal of the woman automatically unfair, it does not necessarily mean that direct sex discrimination has also taken place.
Regulation 10 does not define "vacancy" and does not expressly oblige an employer to offer every suitable vacancy. In this case, if the Council had offered Mrs Wainwright another suitable vacancy apart from the position in question, it might well have complied with its regulation 10 duty.
In any event, the EAT confirmed that regulation 10 is framed as an absolute right, which means that a woman
has the right to be offered a suitable vacancy even if she is not the best candidate for the job. Mrs Wainwright should not have been required to engage in any form of selection process.
The employment tribunal was entitled to conclude there was a redundancy when the Council decided that the two positions would be deleted from its structure and replaced by one.
The decision suggests that employers should note the exact point in time when a redundancy situation arises and offer any suitable vacancies from that point onwards. Accordingly, employers should regard the duty as arising when it first notifies the employee that she may be at risk.