Sefton Borough Council v Wainwright: EAT 13 Oct 2014

EAT Maternity Rights and Parental Leave – Sex discrimination
Unfair dismissal
Return to work
Maternity and Parental Leave Regulations 1999 (MAPL Regs) – regulation 10 – redundancy during maternity leave and entitlement to be offered suitable available vacancy.
Equality Act 2010 (EqA) – section 18 – direct discrimination because of pregnancy and maternity
Appeal against the Employment Tribunal’s finding that there had been a breach of regulation 10 MAPL Regs 1999, dismissing that appeal:
The employer sought to rely on the restructuring process – and the displacement and redeployment stages of that process – it had itself introduced. That did not, however, avoid the conclusion (open to the Employment Tribunal on the evidence) that the Claimant’s post was redundant and that she was entitled to be offered a suitable alternative vacancy. To allow that it was for the employer to determine when the redundancy arose could undermine the protection afforded by regulation 10; employers could state that there was only a redundancy after others had been ‘redeployed’ into what might otherwise have been suitable available vacancies. ‘Redundancy’ should be given the same meaning as under the Employment Rights Act 1996 (Secretary of State for Justice v Slee UKEAT/0349/06/JOJ). Doing so, it could not be said that the Employment Tribunal reached a perverse conclusion in finding that the Claimant’s position was redundant.
Further, although regulation 10 does not define ‘vacancy’ and does not expressly oblige an employer to offer every suitable vacancy or, where there is more than one available, any particular suitable vacancy, on the evidence in this case the Employment Tribunal was entitled to find that the position of Democratic Service Manager (‘DSM’) was an available vacancy that was (on the employer’s own assessment) ‘suitable’ for the Claimant. The DSM post was unoccupied (as a newly created post) at the time the Claimant’s position became redundant and, adopting a normal approach to the use of the word, it was open to the Employment Tribunal to conclude that it was an available ‘vacancy’. It may be that the employer could have met its obligation under regulation 10 if it had offered the Claimant a different suitable available vacancy (which would allow considerations of proportionality to come into play, see Eversheds Legal Services Ltd v De Belin [2011] IRLR 448, EAT), but it never did.
Ultimately this ground really amounted to an attempt to challenge findings of fact that were permissible on the evidence before the Employment Tribunal. The appeal on this basis was dismissed.
Appeal against finding of direct discrimination under section 18 EqA 2010, allowing that appeal:
On this point, the employer was correct as to the difference in how the protections were afforded under section 18 EqA, on the one hand, and under regulation 10 MAPL Regs, on the other. The former provides that, if possessing the protected characteristic, a woman has to demonstrate unfavourable treatment because of pregnancy or maternity leave. Regulation 10 provides that during the relevant period a woman is entitled to special protection and (by virtue of regulation 20) will be treated as unfairly dismissed unfairly dismissed if this is denied.
The Claimant’s case was put on the basis that a breach of regulation 10 must mean that there is inherent discrimination (Johal v the Commission for Equality and Human Rights UKEAT 0541/09) for section 18 purposes. That went beyond the language of the statute and was not the assumption made in other authorities on regulation 10 (or earlier provisions to the same effect). Here, the unfavourable treatment of the Claimant (her own position being made redundant and the failure to offer her a suitable alternative vacancy) certainly coincided with her being on maternity leave but that did not inevitably mean that it was because of it. The Employment Tribunal was required to ask what was the reason why the Claimant had been treated the way she was. The failure to do so was an error of law and this ground of appeal would therefore be allowed.
In many cases, the section 18 question might well be answered by a finding under regulation 10. The particular facts of this case, however, allowed for more than one conclusion. As the Employment Tribunal had simply assumed its finding on regulation 10 answered the section 18 claim, it had failed to set out relevant findings on the ‘reason why’ question. That matter should be remitted to the same Employment Tribunal for further consideration in the light of this Judgment.

Eady QC HHJ
[2014] UKEAT 0168 – 14 – 1310
Bailii
Maternity and Parental Leave Regulations 1999 10, Equality Act 2010 18
England and Wales

Discrimination, Employment

Updated: 24 December 2021; Ref: scu.539296