As we all know, a dismissal will potentially be unfair and discriminatory if a woman is dismissed on the grounds of redundancy whilst on maternity leave where a male colleague, who is also in the same pool, is offered a suitable alternative role in favour of the woman. That alternative role should first be offered to the woman on maternity leave as a form of permitted, so called, "positive discrimination".
But what if the process is not described as a "redundancy" but instead set out to be a "displacement" or a "redeployment"? In a recent case (Sefton Borough Council v Wainwright), the council did just that.
As part of a restructuring exercise, Ms Wainwright found herself in a pool of two managers, the other male, and being told by Sefton Borough Council that the two roles were due to be "combined". The man was offered the post. Sefton Borough Council sought to distinguish this situation from that of a more typical "suitable alternative role" scenario. Sefton argued that the redundancy situation had not yet arisen and so the positive discrimination rule did not apply. The EAT ruled that there is no such distinction and that employers will not be permitted to undermine the protection afforded to women on maternity leave by determining how redundancy processes should be run. Ms Wainwright should have been offered the combined role.
Having established this principle, the EAT went on to note the following in this particular case. Common sense prevailed when the EAT noted that, in this case, the man was more qualified than the woman and so, by offering the combined role to him for that reason, it would not mean that Ms Wainwright suffered maternity discrimination under section 18 of the Equality Act 2010.