A re-structuring took place whilst Mrs Wainwright (Mrs W) was off on maternity leave.

Two posts were being reduced down to one. Mrs W’s role was being amalgamated with a similarly graded post held by a Mr Pierce. Both Mr Pierce and Mrs W were invited to apply for the new position.

Both Mrs W and Mr Pierce were equally qualified for the post. Both were interviewed. Mr Pierce was deemed suitable.

The questions before the Tribunal were:

Should Mrs W have been offered the post under Regulation 10 of the Maternity and Parental Leave etc Regulations 1999?

If Regulation 10 was breached did that amount to direct sex discrimination under section 18 of the Equality Act?

The Employment Tribunal answered both questions in the affirmative. The Council appealed.

The EAT held that:

1. Once an employee’s post has been declared redundant then the obligation under regulation 10 arises.

2. Where the obligation arises and there is a suitable alternative post then the employee should be offered it.

3. The fact that there was a more suitable candidate, in this case Mr Pierce, was immaterial.

4. Breach of  10 does not equate to an act of sex discrimination automatically under section 18 of the Equality Act. The fact that a redundancy occurred during a maternity leave did not mean that the redundancy was because of the maternity leave. A tribunal has to determine the reason for the treatment.

Whilst obviously fact sensitive the killer facts for the employee were:

1. The fact that both redundant roles were similarly graded.

2. The fact that both candidates for the new role were similarly qualified.

3.  The fact that the redundancy arose during maternity leave.

Lessons for employers are:

1. Always check when declaring redundancies whether anyone at risk is on or about to go on maternity leave.

2.  If  so, always consider whether any of the available posts are suitable alternative employment for those at risk who are on maternity leave.