We have dealt separately with the Employment Appeal Tribunal decision in a case called Sefton Borough Council v Mrs M Wainwright. Some of this new case concerns the question of when the protection under Regulation 10 of the Maternity and Parental Leave etc. regulations arise. That right is the right to be offered a suitable role that is available.

The regulation 10 right clearly applies when the woman is on maternity leave. Some commentators suggest that the right arises at the point when a woman is dismissed by reason of redundancy. Some have also claimed that it arises when the woman is given notice of dismissal of redundancy. Both these views are in fact expressed by HR officers from time to time. We don’t agree.

Sefton Borough Council argued that having made a reorganisation and merged two existing roles into one, the right under regulation 10 did not arise until the process of re-organisation had been completed. On the particular facts of that case the jobs of two existing employees, one of whom was Mrs Wainwright, were identified as ‘going’. The Council conceded that either employee could do the new job. It argued however, that until it had decided who should be given the job Mrs Wainwright’s regulation 10 right was not engaged. In support of this it attempted to argue that the regulation 10 right was not engaged at the point of reorganisation or restructure but only at the point of a redundancy dismissal being effected. Under our analysis above therefore Sefton was arguing that the right did not apply until Mrs Wainwright was given notice of redundancy. As we said, we don’t agree and happily neither did the EAT in the Sefton/Wainwright case.

However, there is a difference to note between situations where there is simply a number of jobs being removed and a situation where jobs are going but there is a vacancy or vacancies. In the former case factoring in the fact that the woman is on maternity leave into the selection process, as happened in Eversheds Legal Services Ltd v De Belin [2011] IRLR 448, risks the employer committing sex discrimination against any male employees in the pool for selection for redundancy. In De Belin the choice the law firm faced was between two employees, one of whom would retain their job. Had the law firm had a situation where both jobs were going and a new one created then the positive discrimination required by REgulatioin 10 would have meant that the woman on maternity leave would have been entitled to get the job and would not have gone through a competitive interview.

The situation was different in Sefton Borough Council v Wainwright UKEAT 0168/14, as two roles were disappearing and a new one created. In that case the duty to offer the new role arose while the woman was on maternity leave and not when she returned.

The best explanation we have found is in the IDS handbook of April 2009 called ‘Maternity and Parental Rights’. That book says that the right arises when the redundancy situation becomes known and extinguishes when either the woman is dismissed or when her maternity leave ends. Thus, it doesn’t arise when the woman is told she is to be dismissed by reason of redundancy or even when she is dismissed but arises much earlier, when the redundancy situation becomes known. We agree with that definition.

In respect of the first wrong assumption above, namely that the right only arises on dismissal, a little thought shows that this must be incorrect. This is because if it were true any Company could defeat any woman’s claim under Regulation 10 by the simple expedient of not dismissing the woman until she returned from maternity leave. Alternatively, it could defeat the Regulation 10 claim by not dismissing the woman until all suitable vacancies had been filled. The same logic can be used to show that the second assumption above is wrong.

Returning to the Sefton/Wainwright case we note that the decision was:

“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.”

We note that the Regulation itself says that the Regulation 10 right arises when it is not practicable to continue to employ the woman under her existing contract of employment. It expressly does not say that the right arises when she is dismissed. In fact, it seems clear that the right arises when the old job has disappeared because then it is not practical to continue to employ the woman under her old contract of employment. This is the case even though at that time the woman might not have been dismissed. As we say, the IDS handbook, which incidentally is given great weight by employment tribunals, says that the right arises when the redundancy situation ‘becomes known’.

We know that some employers seemingly deliberately delay dismissal of a woman on maternity leave until she returns. If so, in our view, not only has the woman suffered an actionable detriment, but if there was a suitable job available earlier during maternity leave we think her rights have been infringed. A problem for women by the way returning from maternity leave is that their ‘protected period’ ends when they return to work and there can be issues with taking all accrued holiday at the end of the leave period. There is case law on this subject in favour of women but be aware of the possible issues.

As this is an important subject we need to be clear that our view on when the right under Regulation 10 arises. Our view is that it is when the redundancy situation arises or ‘becomes known’.

In support of our conclusion, we can refer to a case from 2005 called Calor Gas v Bray. This is an employment appeal tribunal (‘EAT’) case about bias and has been given the EAT Number UKEAT/0633/04/DZM. It concerned the dismissal by reason of redundancy of a woman on maternity leave and whether in the original tribunal hearing the Employment Judge was biased against the ex-employer Calor Gas Limited. During its consideration of the bias issues the EAT set out its view of Regulation 10. This is found in paragraph 17 of the EAT judgement.

The gentleman referred to, in the extract below, as “Mr Panesar” is barrister Deshpal Panesar –from Old Square Chambers in London and Bristol. He is now a KC.

The EAT said:

“We agree with Mr Panesar’s submissions that the approach of the Tribunal as regards Regulation 10 should be firstly to consider whether or not it was practicable by reason of the redundancy for her current employment to continue. This would seem to us to involve the employers satisfying a tribunal that it was necessary to implement the redundancy during the period of maternity leave. The Tribunal would then have to determine when the existing contract of employment would be terminated and determine whether a suitable alternative vacancy was available to the employee prior to the termination of her existing contract of employment. …… we cannot accept that the proper interpretation of Regulation 10 means that the consultation period during which time suitable alternative vacancies can be considered is automatically extended until the employee does return to work.”

In this case the EAT clearly states that the Regulation 10 right comes into force before termination of employment. Unfortunately, it doesn’t say when the right arises, other than it arises before termination.

However, the Sefton case does provide a lot of guidance. Although, there are other points to consider in respect of that case, in respect of the timing of regulation 10 it decides that the Regulation 10 right was engaged when the redundancy situation described under 139 of the Employment Rights Act 1996 arises:

For the purposes of this Act (the 1996 Employment Rights Act) an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to-

a)	the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

b) 	the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish.

So, we can say that the right is engaged when, for example, the employer has decided that the requirements of that business for employees to carry out work of a particular kind are expected to cease or diminish.

There is still scope of course for abuse of this provision so whether you are a company, or an employee take proper advice early. Please contact us either if you are a company making redundancies or if you are an employee facing redundancy, particularly if you are pregnant and/or on maternity leave.