The case of Wainwright v Sefton Borough Council was initially heard by Employment Judge Robinson in the Employment Tribunals in Liverpool in September 2013. His judgment was that Mrs Wainwight’s claims of automatic unfair dismissal, breach of regulation 10 of the Maternity and Paternal Leave Regulations 1999 (right to be offered suitable alternative jobs) and direct sex discrimination all succeeded.
In November 2010 the Authority was planning redundancies (as it is again now). The process continued into 2012/13. Mrs Wainwright had worked for the Authority since 2001, latterly as Head of Overview and Scrutiny. From July 2012 to July 2013 she was off work on her third period of maternity leave. As part of the restructure a new post was created – Democratic Services Manager. This combined Mrs Wainwright’s existing role with the post of Head of Member Services, held by a Mr Steve Pierce. Both were placed at risk of redundancy and both were interviewed for the new post in December 2012. It was decided that Mr Pierce was the better candidate and he was offered the new job. As a result, in January 2013, Mrs Wainwright was given three months’ notice of redundancy, which took effect on 15 April 2013.
The new post was a suitable alternative vacancy but it appeared that there were no others at the time. The Council maintained that Mrs Wainwright was not entitled to special treatment under Regulation 10 until the decision was taken about who was the best candidate for the Democratic Services Manager role. However the Tribunal took the view that the right to be offered the vacancy arose when the redundancy situation affecting her job became known and was extinguished either when the appointment took effect or when the maternity leave ended. The Tribunal also took the view that the Regulation 10 right was absolute – where there is a suitable vacancy it has to be offered to the employee on maternity leave. Failure to do so made the resulting dismissal automatically unfair and was direct sex discrimination. Judge Robinson’s reasoning was based on him holding that Mrs Wainwright’s job was no longer available when she was put at risk in July 2012.
On appeal, there were two main grounds.
- – Breach of Regulation 10 was not direct discrimination. Instead, Regulation requires more favourable treatment whereas there can be no direct discrimination unless there is unfavourable treatment.
- – It was an error to conclude that Regulation 10 applied before the interviews for the Democratic Services Manager role.
Her Honour Judge Eady QC found that the Tribunal was entitled to conclude that there was a redundancy when the Council decided that two positions, including that helf by Mrs Wainwright, would be deleted from its structure and replaced with one. As a result, if not provided with a suitable replacement vacancy, Mrs Wainwright would be made redundant. The Council might not have wanted to appoint Mrs Wainwright to the new post but it was obliged to do so unless it could offer her some other suitable vacancy. Judge Eady reached her conclusion concerning the first issue as follows:
In order to afford the Claimant the protection she was entitled to under regulation 10 once her position was redundant (on the ET’s finding that was July/August 2012), the Respondent was obliged to assess what available vacancies might have been suitable and to offer one or more of those to the Claimant. She should not have been required to engage in some form of selection process.
Whether that meant that the Respondent had to offer the DSM position, or whether it would have been able to offer some other suitable alternative vacancy, was for it to assess. At that stage, it would have been open to the Respondent to have taken into account the interests of Mr Pierce and its own desire to appoint the best person to the new role of DSM. It might not have been proportionate to have required the Respondent to have offered the Claimant a particular vacancy (such as the DSM role) if something else would also have been suitable and had been offered. On the evidence before the ET, however, the Respondent offered the Claimant nothing notwithstanding, on its own case, the DSM position, which needed to be filled, being a suitable alternative for her.
For those reasons I consider the ET reached a conclusion entirely open to it on the regulation 10 case and, therefore, also on the question of automatic unfair dismissal. Accordingly, I dismiss that ground of appeal.
As for the second ground, there was not inherent discrimination. The unfavourable treatment of Mrs Wainwright – her own position being made redundant and not being offered a suitable vacancy – coincided with her being on a relevant period of maternity leave but it it not follow that it was inevitably because of it. the Tribunal should therefore have asked itself what was the reason why Mrs Wainwright was treated in the way that she was. that question was therefore remitted to the same tribunal for consideration.
However, that is not necessarily the end of the story. An application by the Council to appeal the Regulation 10 point to the Court of Appeal was refused by Judge Eady QC but may be renewed on the basis that this is not an area of law previously explored by the Court of Appeal. Yet again, an employment case in which the eventual outcome remains uncertain.