Posted by Gemma Ospedale, Partner
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Maternity protected period – not always discriminatory to not offer alternative role
The EAT case of Sefton Borough Counsel v Wainwright has considered the requirement under regulation 10 of the Maternity and Parental Leave Regulations 1999 to offer a suitable alternative role to a woman who is selected for redundancy whilst on maternity leave – known as the “protected period”; and section 18 of the Equality Act concerning unfavourable treatment “because” of pregnancy or maternity leave.
The council decided to restructure, putting the Claimant and a male employee at risk of redundancy in July 2012 by amalgamating both roles and inviting them both to apply. The Claimant has just begun maternity leave at that time, and she was interviewed, along with the other candidate, in December 2012 for the combined role. She was unsuccessful. She claimed that the dismissal was automatically unfair under regulation 10 because the role was a suitable alternative vacancy and the council had failed and its obligation to offer it to her. She also claimed that it was directly discriminatory under section 18 of the Equality Act. The Tribunal upheld both claims and the council appealed on both grounds to the EAT.
The appeal against the regulation 10 obligation (to offer the role automatically) was dismissed. The Tribunal had found, with which the EAT agreed, that the council had offered her no alternative employment, notwithstanding that the role for which she had applied (the combined role) was a suitable vacancy. There was therefore a clear breach of regulation 10. The point made here was that, while she may not have been successful for the combined role, the council should have at least offered her something.
However the council’s appeal on the section 18 of the Equality Act, the Tribunal finding that her unfavourable treatment was because of pregnancy or maternity leave, was allowed. The EAT held that the Tribunal had not questioned the reason why the Claimant was treated as she had been. It was not open to the Tribunal to assume that, just because there was a breach of regulation 10, there was automatically a breach of regulation 18 and that the treatment had been because of maternity or pregnancy. Her being on maternity leave was clearly the context for unfavourable treatment; but it did not inevitably mean that this treatment was because of the fact that she was on maternity leave. This aspect of the claim has been remitted to the Tribunal.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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