Pregnancy and unfair dismissal: What determines the suitability of an alternative role under the regulations? Mrs L Male-Maltby v G Seller & Co Limited 2602950/2018
When a woman takes maternity leave, her employer is statute-bound to protect her. Under Regulation 10 of the Maternity and Parental Leave Regulations 1999, Where there is a suitable available vacancy, the employee is entitled to be alternative employment with her employer, under a new contract of employment, which:
- is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
- not substantially less favourable to her than if she had continued to be employed under the previous contract, in relation to capacity and place, and other terms of employment.
There are also protections under the Equality Act 2010, pregnancy being a protected characteristic. Section 18 provides that a person is discriminated against if they are treated less favourably because of a pregnancy.
Mrs Lale-Maltby, the Claimant, was employed by the Respondent at a small office of its funeral director business. There were two other, larger offices, in Newbold Vernon (NV) and Hinckley (H). When the Claimant informed the Respondent that she was going to be taking maternity leave, the Respondent informed her that they were planning to close her office, but that there were two alternative roles which she could apply for: a part-time role at the NV office, or a full-time role at the H office. The Claimant had previously discussed with the Respondent taking on a full-time role in the future, and so responded saying she would like to take on the role at the H office.
The Claimant was told that she was more suitable for the NV role, as there were better-qualified people for the H office. She reasoned that, in terms of additional childcare and expenses travelling, she would actually be making a loss on her earnings each month by working at NV. She raised a grievance with the Respondent, which did not alter its position.
On appeal, the Respondent stated that as “[the Claimant] would be returning to work after a lengthy absence”, she would be better suited for the NV role. This was despite her elucidating the issues of childcare and financial losses which this would incur.
Regulation 10 Maternity and Parental Leave Regulations 1999
Following the reasoning of the EAT in Sefton BC v Wainwright  IRLR 90, the ET concluded that, had there been a suitable vacancy, the Claimant should have been slotted in with no competition. The issue was therefore whether the H office role was “suitable”. Bearing in mind the Claimant already worked one day a week at the H office, and that she had discussed full-time options with the Respondent previously, the ET found that the full-time role at the Respondent’s Hinckley office was suitable alternative employment for the Claimant and in not offering that position to her the Respondent did not comply with its obligations under regulation 10.
Section 18 Equality Act 2010
Due to the phrase “It was purely felt that as you would be returning to work after a lengthy absence you would be better suited to a role which matched the position you held” in the Claimant’s appeal, the ET concluded that the reason for the less favourable treatment was clearly the maternity leave. As such, the discrimination alleged by the Claimant was made out.
The claim therefore succeeded on both the discrimination and unfair dismissal grounds, and was listed for a remedy hearing.
Chris Hadrill, partner in the employment team at Redmans, commented on the case: “Employers must ensure that they carry out fair redundancy procedures in general, but – as this case shows – they must be incredibly careful when it comes to dealing with redundancy processes involving women on maternity leave”.