An employee had worked for her local authority employer for around 12 years when the council began a redundancy and reorganisation exercise shortly after she started her maternity leave.
“EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. held Reg 10 gave her an absolute right to the merged role, with no competitive selection required.”
Where a genuinely suitable alternative vacancyA suitable alternative vacancy is a genuinely comparable role your employer must offer you before making you redundant, if one exists. If you're on maternity, adoption, shared parental, neonatal care,... exists during your protected leave, it's yours by right, not something you have to out-compete a colleague for.
- A "we chose the better candidate" explanation from your employer can itself be evidence of a Regulation 10 breach, not a defence to one.
- You don't need to prove discrimination to win a Regulation 10 claim, and a failed discrimination claim doesn't rule out a Regulation 10 one.
- Get advice quickly if a new or merged role appears anywhere in your redundancy process while you're on protected leave.
The situation
An employee had worked for her local authority employer for around 12 years when the council began a redundancyA dismissal that occurs when your employer no longer needs the work you do, either because the business is closing, a workplace is closing, or the requirement for employees to carry out that kind of w... and reorganisation exercise shortly after she started her maternity leave. Two managerial posts, hers and a male colleague's, were being combined into a single new role.
The council decided her male colleague was better qualified for the combined role and gave it to him. She was dismissed for redundancy while still on maternity leave.
What the tribunal found
The EAT found the council had breached her rights under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999. Because the two roles were being merged into a new position, a genuine vacancy existed, and Regulation 10 gave her an absolute right to be offered it.
The tribunal was clear that this right doesn't work like a job application. She didn't have to be the stronger candidate, and the council wasn't entitled to run a competitive process to decide who deserved the role more. If the new role was suitable for her, it was hers, full stop.
The EAT also made an important separate point. A breach of Regulation 10 doesn't automatically prove pregnancy or maternity discrimination. The two claims ask different questions: Regulation 10 requires more favourable treatment for someone in her position, while a discrimination claim under the Equality Act asks whether she was treated unfavourably at all. They can point in different directions on the same facts.
For the fuller picture of this right across all six family leave types, see our guide on redundancy and family leave: your right to be offered a suitable role first.
Sefton Borough Council v Wainwright. [2014] UKEAT/0168/14. Employment Appeal Tribunal. 2014.