In the case of Sefton Borough Council v Wainwright 2014, the EAT held that:
- An employee on maternity leave was entitled to be offered a suitable alternative post as soon as the employer created the new post in the restructure because that was the point at which there was a redundancy: not at the later stages of displacement of the employee or, redeployment;
- The EAT affirmed that the entitlement is to be offered a suitable alternative vacancy: not every, or where there is more than one, any particular suitable alternative vacancy.
In June 2012, as part of a management restructure to save costs, the Council approved the new position of Democratic Service Manager. That role combined Mrs Wainwright’s role as Head of Overview and Scrutiny and Mr Pierce’s role, as Head of Member Services both of which would disappear. In early July 2012, Mrs Wainwright commenced her third period of maternity leave. On 26 July 2012, the Council advised Ms Wainwright and Mr Pierce that their positions were at risk of redundancy. The new role was suitable for both of them and, in December 2012, the Council placed both Mr Pierce and Ms Wainwright in a pool for selection. Mr Pierce, having achieved the higher score in the selection process, was offered the new position. On 8 January 2013, the Council gave Mrs Wainwright three months’ notice of dismissal to expire during her maternity leave and informed her of her right to be redeployed. The Council argued that the obligation to offer Mrs Wainwright a suitable alternative vacancy in the restructure process arose, at the earliest when she was displaced (December 2012) or at the redeployment stage (January 2013).
The EAT disagreed with the employer’s argument. It held that the meaning of ‘redundancy’ under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999 has the same meaning as s.139 of the Employment Rights Act 1996: namely that there would be a redundancy when the requirements of the business for employees to carry out work of a particular kind had ceased or diminished, or are expected to cease or diminish. The Employment Tribunal therefore had been entitled to conclude there was a redundancy in June 2012, when the Council decided that the two positions would be deleted from its structure and replaced by one: not in January 2013 when the decision to dismiss Ms Wainwright was finally made.
The EAT agreed that that since Regulation 10 does not define ‘vacancy’ it does not oblige an employer to offer every suitable vacancy or, if more than one, any particular vacancy and if the Council had offered Mrs Wainwright another suitable vacancy apart from the DSM role, it might well have complied with its regulation 10 duty.
Employers to note:
- The right to be offered suitable alternative employment in preference to others at risk of redundancy arises when the new role is created: not at the later stages of displacement or redeployment.
- A woman’s entitlement to the abovementioned special treatment kicks-in before an employer makes the decision as to who is the best candidate for a new role.
- Suitability for a new role must not be tested by assessment or interview.
- The right is to be offered a suitable alternative role not invited to apply for it.
- The right does not apply to every available suitable alternative role or any particular one.
- The obligation to offer suitable alternative employment is not extinguished until the end of the notice period or whether the maternity leave ends.
- Remember this right will also apply to the new entitlement of partners sharing parental leave which is effective from 5 April 2015 Read the new rules here