A recent case from the Employment Appeal Tribunal (EAT) reminds employers that if a pregnant woman is at risk of redundancy, she must be offered suitable alternative employment otherwise any subsequent dismissal will be automatically unfair.

The case concerned an employee of Sefton Borough Council who had been made redundant while on maternity leave. Following an organisational restructure, Ms Wainwright had competed for a vacant position along with another colleague. When she failed to get the new job she was placed into a redeployment pool but she showed little interest in other jobs. The EAT ruled that Ms Wainwright should have been offered the new job despite her colleague being the superior candidate.

The right to be offered a vacant position arises when it is clear that the employee’s job is at risk of redundancy and it ends either when dismissal takes effect or maternity leave ends, whichever comes first. This right is provided for by Regulation 10 of the Maternity and Parental Leave Regulations 1999.

Of course, the employer will have to assess whether the job is suitable. If it is, then the employee must be slotted into the role, regardless of whether another employee who is better suited for the role is at risk of redundancy. The reason for this seemingly unfair behaviour is to ensure that women are not penalised by having to take time off work to have a baby.

The key question for the EAT to decide was when the obligation to offer the job arose. Sefton Borough Council had tried to argue that the obligation only arose when Ms Wainwright had been placed into the redeployment pool, not when she was competing in a one-on-one situation with her colleague for a new job.

The EAT rejected Sefton’s argument. It decided that once a decision had been made that Ms Wainwright’s job was to go, she was potentially redundant unless alternative employment could be found. At that point, the Regulation 10 obligation arose. The fact that the job for which she initially competed was only open to a limited pool of two candidates did not mean it did not count as a vacancy. Sefton Borough Council was therefore obliged to give the job to Ms Wainwright unless it could find another suitable alternative position.

The EAT also considered whether Sefton Borough Council’s treatment of Ms Wainwright had amounted to direct discrimination because of pregnancy and maternity. The EAT decided that the employment tribunal had not dealt satisfactorily with this issue because it had not focused on the reason why Ms Wainwright had been made redundant when deciding whether there had been direct discrimination.

The EAT also dealt with the issue of costs. Sefton Borough Council had applied to have Ms Wainwright pay its legal costs relating to the appeal if it was successful. The EAT noted that Sefton had only partially succeeded in its appeal therefore Sefton was only permitted to recover half of the money spent on the hearing fee.

Main photo: Pregnant woman by Freely Photos user Jonathan Faint used under Creative Commons 1.0 public domain dedication