Redundancy and Maternity Leave: Extent of Obligation to Offer Alternative Employment

Failure to offer a suitable alternative vacancy to a redundant employee who was on maternity leave did not necessarily amount to discrimination because of maternity leave. However, where the roles of two employees were being replaced by one new role, and one of those employees was on maternity leave, the employer was obliged to offer the new role to the employee on maternity leave. 

In Sefton Borough Council v Wainwright, the employer embarked on a redundancy and reorganisation process. It proposed to abolish W’s role and that of P, a man, and replace them with a new role. In July 2012, when W had just commenced maternity leave, W and P were both notified that they were at risk of redundancy. The employer interviewed W and P for the new role in December 2012. It decided that P was the better candidate and offered him the new role. W was given notice of redundancy in January 2013 and her dismissal took effect in April 2013.

Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR) requires an employer to offer a suitable alternative vacancy, if it has one, to a woman selected for redundancy whilst on maternity leave. W argued that her employer should have offered her the new role and its failure to do so rendered her dismissal automatically unfair. She also argued that it amounted to direct discrimination because she was on maternity leave. The employment tribunal upheld both claims and the employer appealed to the Employment Appeal Tribunal.

The employer argued that the obligation to offer an alternative vacancy was only triggered once it had decided who should be appointed to the new role i.e. once the restructure was complete. At that point, the new role was not vacant and so it was not obliged to offer it to M. The EAT disagreed. The redundancy situation arose when the employer decided that two positions would be deleted from its structure and replaced with one. That was in July 2012 and at that point the new role was vacant. The employer was therefore obliged to offer the new role to M in preference to P, unless it was in a position to offer her some other suitable available vacancy. 

However, the tribunal had been wrong to assume that the failure to offer M the new role amounted to discrimination because of maternity leave. The tribunal should have asked why M had not been offered the new role and only if this was because she was on maternity leave was discrimination made out. The case was remitted to the employment tribunal to consider this point.

The EAT found that the employer’s failure to offer the woman on maternity leave the new role meant that it had breached its obligation to offer a suitable alternative vacancy. Whilst at first sight this suggests that employers in this situation are prevented from selecting the best candidate for the role, in fact the decision might not be quite as restricting as first appears. It seems that the employer could have offered the new role to its preferred candidate without breaching Regulation 10 MPLR if it had offered M another suitable alternative vacancy. So an employer could choose to offer another suitable alternative vacancy if it has one and still appoint its preferred candidate.  The obligation is to offer an alternative vacancy, not all alternative vacancies.

Whilst a failure to comply with Regulation 10 MPLR will not necessarily amount to discrimination because of maternity leave, employers need to make sure that any unfavourable decisions they make about offering alternative roles are not due to the employee being on maternity leave.