Not being offered suitable alternative vacancy was unfair dismissal but not discrimination
The Employment Appeal Tribunal (EAT) in the case Sefton Borough Council v Wainwright analysed the right of women on maternity leave to be offered a ‘suitable available vacancy’ (a job that is both suitable and available) in a redundancy situation.
The decision is timely, as similar rights will be available from 1 December 2014 to those eligible to take shared parental leave for babies due (or children placed for adoption) on or after 5 April 2015. The case illustrates how the right applies when a redundancy situation arises during a restructuring exercise and highlights the dangers of requiring employees on maternity leave to compete for redeployment in a new role.
Facts
The employer in the case decided that two positions, including the claimant’s existing job, would be replaced by a single, newly created, position. Wainwright, who was on maternity leave, and the person who had occupied the other redundant position, were both interviewed for the new role. Wainwright’s colleague was offered the job. She was offered no other vacancy and was made redundant. She claimed unfair dismissal and discrimination.
Tribunal and EAT
Wainwright’s claim of automatic unfair dismissal succeeded because the employer had failed to comply with its duty to offer her a suitable vacancy where one was available. This decision was upheld by the Employment Appeal Tribunal, which went on to deal with when the right to be offered a ‘suitable available vacancy’ arose. It occurs when it is not practicable to continue to employ someone under his or her existing employment contract because of redundancy, and it arises as soon as the employer decides the existing job will go.
In this case, the redundancy arose as part of a restructuring exercise. The EAT said that where this involved a reduction in employees doing a particular type of work, without any change in the terms and conditions of those who retained their jobs, there is no right to be given preference in the redundancy selection exercise. This means the right to be offered a ‘suitable available vacancy’ is unlikely to arise until the employer has carried out a selection exercise.
Vacancies
In this case, the new post was a ‘suitable available vacancy’ as the claimant would have been slotted in automatically if she had been the only potential candidate. So, if there were no other suitable vacancies available, the claimant should have been offered the post without having to compete for it.
If there is more than one ‘suitable available vacancy’, the employer can choose which to offer, provided both (or all) the jobs involve work which is:
- suitable for the employee
- appropriate in the circumstances
- offered on terms and conditions not substantially less favourable than those applying to the old job.
In this case, if the employer had offered Wainwright an appropriate job, rather than the new role, it could have avoided liability for unfair dismissal. However, the EAT suggested an employer does need to balance the interests of other employees when deciding which of several vacancies to offer a woman on maternity leave. Otherwise it risks a discrimination claim from those who miss out on a vacancy because of preferential treatment given to a female employee solely on account of her maternity. So, the maternity leave employee should be considered for those positions alongside other redundant employees.
Discrimination
The EAT overturned the tribunal’s decision that the employer’s failure to offer the vacancy also constituted maternity discrimination. A failure to comply with the maternity regulations is not in itself unfavourable treatment because of maternity. The question in all cases is whether the reason for not offering a suitable alternative vacancy was that the claimant was on maternity leave.
Comment
The distinction between unfair dismissal and discrimination means that in most cases of this type, a tribunal award will not include compensation for injury to feelings and the amount will be capped at 52 weeks’ pay (or the statutory cap if lower). However, a tribunal could order an employer to re-engage an employee, even if that would mean somebody else might have to be dismissed, or moved.
Simon Rice-Birchall is a partner at Eversheds
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