Sefton Borough Council v Wainwright (Maternity Rights and Parental Leave) [2014] UKEAT 0168_14_1310

EAT
Sefton Borough Council v Wainwright (Maternity Rights and Parental Leave)
[2014] UKEAT 0168_14_1310 · 2014-10-13
[29]“… that the obligation in question cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition. (We use the term ‘reasonably necessary’ in the sense that it is understood in this field, ie as requiring the application of the proportionality principle … To the extent that a benefit extended to a woman who is pregnant or on maternity leave is disproportionate, we see no reason why a colleague who is correspondingly disadvantaged should not be entitled to claim for sex discrimination … The only justification for treating the woman more favourably is the need to see that she is not disadvantaged by her condition, and where the treatment in question goes beyond what is reasonably necessary for that purpose a real injustice may be done to a colleague. Quite apart from the matter of principle, it is important not to bring into disrepute the legislation which protects pregnant women and those on maternity leave by giving it a wider scope than is properly required.” 29. By analogy, the Respondent contended that the position adopted by the ET in the present case went further than was reasonably necessary to protect the Claimant’s interests and would have given rise to an unfairness to Mr Pierce if the Respondent had thus acted. The Claimant’s interests could be reasonably protected by affording her regulation 10 entitlement only when she was in the redeployment pool. 30. Turning then to the appeal against the finding of direct discrimination, Ms Chudleigh observed that section 18(2)-(4) provides that, in the protected period (as the Claimant was), a complainant does not have to show less favourable treatment, simply un favourable treatment because of pregnancy or maternity leave. The requirement was thus to ask the reason why the Claimant was treated the way she was (see Johal v the Commission for Equality and Human Rights UKEAT 0541/09). 31. An adverse finding under regulation 10 did not automatically mean that there had been a breach of section 18 of the Equality Act ; different tests applied. Regulation 10 required more favourable treatment to be afforded to the woman within the protected period. Section 18 required that she was not treated unfavourably. 32. Applying the test under section 18 of the Equality Act , this was not a case involving an inherently discriminatory act (see Johal ). Indeed, the ET did not find that the act of appointing Mr Pierce was inherently discriminatory. The rationale for its Judgment was that it was rendered directly discriminatory because there had been a breach of regulation 10. It had made no findings adverse to the Respondent in terms of the conduct of the interview or the offer to Mr Pierce. Given that there was no finding that the act of appointing Mr Pierce was inherently discriminatory, the ET should have addressed its mind to the reason why question; it failed to do so. It wrongly equated a breach of regulation 10 with direct discrimination for section 18 purposes, and that amounted to an error of law which should be overturned on appeal. 33. The Respondent recognised that there could be cases involving both a breach of regulation 10 and direct discrimination (see, for example, Secretary of State for Justice v Slee UKEAT 0349/06/JOJ). Those cases, however, involved a differential treatment of the Claimant once she was on maternity leave as compared to how she had been treated before; there was a basis for the finding of direct discrimination which was not present in this case. The Claimant’s Case 34. On behalf of the Claimant it was observed that regulation 10 applies to the position where it is not practicable to employ the complainant by reason of redundancy. In Secretary of State for Justice v Slee at paragraph 78 the EAT (Silber J presiding) had held that, for the purposes of regulation 10, redundancy had the same meaning as that laid down by section 139 of the Employment Rights Act 1996 : there would be a redundancy when the requirements of the business for employees to carry out work of a particular kind had ceased or diminished, or were expected to cease or diminish. That being so, the Respondent’s obligation to offer the Claimant a suitable alternative vacancy arose as soon as it was clear that she would not return to her previous job because of the redundancy situation affecting it. 35. On the ET’s findings of fact the Claimant’s job was no longer available to her as at July 2012, when the decision was made which removed the Claimant’s position from the Respondent’s organisation (and, indeed, the Respondent had described the Claimant’s position as redundant prior to her being put into the redeployment pool). On its finding as to when the Claimant’s position was redundant the ET had correctly held that the obligation under regulation 10 was engaged. 36. The De Belin case was not on point. That was a conventional redundancy exercise involving two individuals, where one would be made redundant. There was no alternative vacancy, simply the removal of one of two positions. 37. The Respondent’s approach would make a nonsense of regulation 10: an employer would be able to avoid the operation of regulation 10 protection by declining to define the position as ‘redundant’ until after all possible alternative posts had been filled. That would be similar to what had been proposed in the case of Philip Hodges and Co v Kell [1994] IRLR 568 , EAT. The ET had there held that there would be a breach of the statutory forerunner of regulation 10 if an employer could fill any alternative vacancy with another employee before telling the employee on maternity leave that she was redundant and that no suitable alternative existed for the operation of her regulation 10 rights. The EAT had not disapproved that approach. 38. Turning to the direct discrimination appeal, Mr Sigee submitted the ET’s Judgment had been made under section 18 on the basis of findings that the Claimant was unfavourably treated because of the way the appointment to the DSM position was undertaken. Although the ET did not find that the interview was itself discriminatory, it had found that the requirement that the Claimant engage in a competitive interview and selection process amounted to unfavourable treatment. This was a case where the underlying treatment was inherently discriminatory (using the language of Johal ) because there had been a denial of the Claimant’s regulation 10 rights. Indeed it was the Claimant’s case that a breach of regulation 10 must always give rise to direct discrimination for the purposes of section 18 Equality Act 2010 . The Respondent in Reply 39. Miss Chudleigh questioned the relevance of the Philip Hodges v Kell case. That was not a restructuring case but involved different facts: there the Respondent had employed someone from outside the workplace whilst the Claimant was on maternity leave. The issue in that case had been whether the Claimant’s regulation 10 (equivalent) rights only arose upon her serving notice of her intention to return. Discussion and Conclusions 40. I consider first the appeal relating to regulation 10 of the Maternity and Parental Leave Regulations 1999 . In this case it seems to me that the issues were (and are) fairly simple. It was common ground that the Respondent had, or expected to have - because of its need to meet budgetary cuts - a diminishing requirement for employees to carry out work of the particular kind for which the Claimant was employed. As a result, her position was to be deleted from the organisation by reason of redundancy. The ET concluded that had been so as from July/August 2012. At this stage, the question for me is whether the ET erred in reaching that conclusion; was it absent any evidential basis or perverse in some other way? Given its findings, it seems to me that this was a conclusion that the ET was entitled to reach. In particular I note the finding at paragraph 22:
“The claimant’s job was no longer available to her as at July 2012 when she was put at risk. Nothing could save her job at that point, nor indeed Mr Pierce’s, and it was inevitable that they would go head to head for the new role of DSM. That job was a suitable alternative vacancy.” 41. Miss Chudleigh seeks to avoid that conclusion by contending that there was a distinction between the Claimant’s position in the period July/August 2012 to December 2012 and then after she had been given notice of redundancy in January 2013. She says that the Claimant was only displaced after Mr Pierce had been slotted into the DSM position. She accepts that, once in the redeployment pool, the Claimant was entitled to more advantageous treatment and would need to be offered any suitable alternative vacancy over a better candidate. But, she argues, at that stage all the employees concerned would be in the redeployment pool, having been displaced from their former positions. 42. The danger with this argument is that the Respondent is seeking to rely on terms such as “displaced” and “redeployment” rather than engaging with the term used by the regulation, that of “redundancy”
. Its position becomes all the more confusing given that the Respondent itself described the Claimant as being on the redeployment register in August 2012; so, some time before she was given notice of redundancy in January 2013. Moreover, in its argument, the Respondent refers to the Claimant’s position as being redundant prior to the completion of restructuring. It is hard to conclude other than that both the Claimant and Mr Pierce had been displaced from their positions once a decision was taken that their posts should be deleted in July/August 2012 and that they were both thus potentially redundant unless they could be engaged in some alternative position. By using the language of “displacement” and “redeployment”, the Respondent effectively puts its focus on the process that it decided to operate rather than the redundancy situation in which that process was to take place. That does not assist greatly for regulation 10 purposes. 43. Moreover, I agree with Mr Sigee that such an approach could be used to undermine the protection afforded by regulation 10. It is largely left open to employers to decide how best to carry out redundancy and restructuring processes. If it is also left to the employer to decide when a redundancy actually occurs - so, to determine when the obligation under regulation 10 arises - it is easy to see how that position might be abused (as was noted by the ET in the Kell case). The correct approach is that laid down by the EAT (Silber J presiding) in Slee . “Redundancy” is to be defined for regulation 10 purposes as it is under section 139 of the Employment Rights Act 1996 . Once an employee’s position is thus “redundant”, the obligation under regulation 10 arises. 44. The ET was thus entitled to conclude that there was a redundancy when the Respondent decided that two positions, including that of the Claimant, would be deleted from its structure and replaced by one. The requirements of the Respondent’s business for employees to carry out work of that particular kind had ceased or diminished, or were expected to do so. If not provided with a suitable available vacancy, the Claimant’s employment would be terminated by reason of redundancy. That position was not, in my judgment, altered by the fact that the Respondent would have slotted either the Claimant or Mr Pierce into the newly created position of DSM, without any wider competition taking place. That did not mean that their previous positions were not redundant; they were. They just had a chance to avoid being dismissed by reason of redundancy by being offered the DSM vacancy. 45. That said, I can also accept Miss Chudleigh’s submission that regulation 10 does not define “vacancy” and does not expressly oblige an employer to offer every suitable vacancy or, indeed, any particular vacancy if more than one might be suitable. If the Respondent had, as a matter of fact, offered the Claimant a suitable available vacancy other than the DSM position, it might well have complied with its regulation 10 obligation in any event. That does not mean, however, that I would agree with her that the DSM position was not a vacancy. Miss Chudleigh says it was not because it was not open or available to a pool wider than the Claimant and Mr Pierce: as this was a post into which either the Claimant or Mr Pierce would simply be slotted in (there was to be no wider competition), it was not a vacancy. That again seeks to define the terms in question through the prism of the Respondent’s chosen way of proceeding. I do not find it helpful. The fact that a job is only open to a limited pool does not mean that it is not “vacant”, as that term would normally be understood; that is, “not presently occupied”. Certainly, on the facts of this case, the ET was entitled to conclude that this was a vacancy, and - given the Respondent’s concession - on that was “suitable” for the Claimant. 46. I can see that the Respondent might not have wanted to give the DSM vacancy to the Claimant in preference to Mr Pierce, but, in my judgment, it was obliged to do so unless it was in a position to offer the Claimant some other suitable available vacancy. This, it seems to me, is the answer to Miss Chudleigh’s proportionality point. 47. As the EAT held in Eversheds Legal Services v De Belin , the obligation is to do that which is reasonably necessary to afford the statutory protection to the woman who is pregnant or on maternity leave. Doing more than is reasonably necessary would be disproportionate and puts the employer at risk of unlawfully discriminating against others. Here, the protection is afforded to women on maternity leave because of the particular disadvantage that they suffer in engaging in a redundancy selection process and competing for whatever jobs remain. Indeed the point is graphically illustrated in the present case when the Claimant had to attend the DSM interview at a time when she had, “three young children under the age of three including one babe in arms” and responded to a query from the Respondent in February 2013 saying she was “at war with her children who had chicken pox etc”. In order to afford the Claimant the protection she was entitled to under regulation 10 once her position was redundant (on the ET’s finding that was July/August 2012), the Respondent was obliged to assess what available vacancies might have been suitable and to offer one or more of those to the Claimant. She should not have been required to engage in some form of selection process. 48. Whether that meant that the Respondent had to offer the DSM position, or whether it would have been able to offer some other suitable alternative vacancy, was for it to assess. At that stage, it would have been open to the Respondent to have taken into account the interests of Mr Pierce and its own desire to appoint the best person to the new role of DSM. It might not have been proportionate to have required the Respondent to have offered the Claimant a particular vacancy (such as the DSM role) if something else would also have been suitable and had been offered. On the evidence before the ET, however, the Respondent offered the Claimant nothing notwithstanding, on its own case, the DSM position, which needed to be filled, being a suitable alternative for her. 49. For those reasons I consider the ET reached a conclusion entirely open to it on the regulation 10 case and, therefore, also on the question of automatic unfair dismissal. Accordingly, I dismiss that ground of appeal. 50. Turning to the appeal against the ET’s conclusion on direct discrimination, I consider Miss Chudleigh is right in distinguishing between how the protection is afforded under section 18 of the Equality Act and how it is provided under regulation 10 of the 1999 Regulations . The former provides that, if possessing the protected characteristic, a woman does not have to show less favourable treatment; merely unfavourable treatment because of pregnancy or maternity leave. Regulation 10, on the other hand, provides that, during the relevant period, a woman is entitled to special protection and will be treated as unfairly dismissed if this is denied to her. 51. The Claimant’s case is put on the basis that a breach of regulation 10 means that there is inherent discrimination (per Johal ) for section 18 purposes. That, however, goes beyond the language of the statute. It would have been relatively easy for the legislators to provide that a breach of regulation 10 would give rise to a breach of section 18 of the Equality Act (as is effectively done in respect of unfair dismissal by the operation of regulation 20). The legislators apparently chose not to do so. Instead the language used is that of unfavourable treatment which is required to be because of the protected characteristic. 52. Here the unfavourable treatment of the Claimant - her own position being made redundant and not being offered a suitable available vacancy - certainly coincided with her being on a relevant period of maternity leave. I do not, however, accept Mr Sigee’s submission that must inevitably mean that it was because of it. That seems to me to be assuming the reason why something happened simply on the basis of the context in which it happened. I note that such an assumption is not made in the other authorities to which I have been referred and it does not seem to me to be the way in which section 18 is worded. I accept Miss Chudleigh’s submission that the ET was therefore obliged to ask what was the reason why the Claimant was treated the way she was. 53. I think, therefore, that the ET fell into error in assuming that the section 18 question was answered by its finding there had been a breach of regulation 10. In many cases, the answers may be the same. The particular facts of this case, however, allowed for more than one answer. 54. The Respondent says, given the ET’s findings, I can answer that question myself. I am not persuaded that is correct. Because the ET assumed that a breach of regulation 10 necessarily meant a breach of section 18, it did not ask the “reason why” question and the considerations which might arise when that is done might be more subtle than emerge from the findings made by the ET. I can see force in the Respondent’s argument that the ET did not find the interview process inherently discriminatory and did not make other findings adverse to the Respondent, which might have been relevant under section 18. That said, such findings might have not been expressed because of the way in which the ET jumped from its finding on regulation 10 to its finding under section 18. I do not think that it is obvious that only one conclusion was possible. 55. The result of my Judgment on the regulation 10 point is that the ET’s Judgment is upheld on that claim. On the other hand, I allow the appeal on the section 18 claim. Having heard further submissions on the question of disposal, and taking into account the factors laid down by the EAT in Sinclair Roche Temperley v Heard and Fellows [2004] IRLR 763 , I direct that this matter should be remitted to the same ET to consider again the direct discrimination claim. There is no question as to this ET’s ability to re-hear this; it has already heard all the evidence before; there is no question of bias and this is certainly the most proportionate approach. Unless there is any other reason why it is not practicable, the order will be that the direct discrimination claim is remitted to the same ET. 56. Having given my Judgment in this matter and determined the correct disposal of the appeal, the Respondent has applied for permission to appeal to the Court of Appeal on the regulation 10 point. Miss Chudleigh observes that this is not an area previously explored previously by the Court of Appeal and submits that it might be a point of law of wider interest. In my judgment, this is ultimately a case which depends on its own facts. As such, it does not give rise to any arguable point of law for the Court of Appeal nor is there any compelling reason for it to proceed to a further appeal. I do not grant the application. 57. Miss Chudleigh has also asked for her client’s costs limited to the fees that have been paid for lodging the appeal (£400) and the subsequent hearing fee (£1,200). Mr Sigee resists that; observing that the Respondent has only been partially successful, on one of the two grounds of appeal and urging that, in these circumstances, no order should be made. 58. It is right to say that under Rule 34A(2)(a) EAT Rules 1993 (as amended) a broad discretion is given to the EAT in terms of such an order. In the normal course of events it might be expected that a successful party should be entitled to recover their fees from a party that has resisted an appeal. The position is arguably more complex, however, when an appeal has only been partly successful. One does not know - and it is difficult to unpick the history - what the position might have been had only one point been taken. It might have been that the other party would not have sought to resist the appeal on that basis. On the other hand, I do not consider it right in this case simply to ignore the fact that the Respondent has been put to these costs. 59. In order to bring any appeal the Respondent had to pay a lodgement fee of £400. Given that it has been at least part successful, and it would have had to pay that fee in order to achieve any success, I see no particular reason why it should not recover the £400. On the hearing fee, matters might have been more complicated had the Respondent only been pursuing the appeal against the direct discrimination finding. The Claimant might not have sought to resist the appeal; might have taken no active part in the proceedings and that might have been a relevant point to take into account. I speculate, but it is difficult to do anything else at this stage. Given that the Respondent has only been partly successful, I exercise my discretion and give it only part - one half - of its hearing fee. I therefore order that the Claimant pay costs limited to £1,000 to the Respondent.

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