Pregnancy, maternity and race discrimination and redundancy
Redundancy dismissal because of pregnancy or maternity is automatically unfair. No minimum qualifying period of continuous employment applies.
A woman who is made redundant during maternity leave must be offered any suitable vacancy.
Sefton Borough Council v Wainwright  IRLR 90, EAT
Statute reference: Maternity and Parental Leave etc Regulations 1999, regs. 10, 20; Equality Act 2010, s.18
SBC carried out a restructuring process. This resulted in two posts being made into one, which meant that either W or her colleague would be appointed to the new post. W was on maternity leave in July 2012 when interviews for the post were carried out. W was unsuccessful. She was made redundant in April 2013. She complained of direct sex discrimination and automatic unfair dismissal. The ET found that regulation 10 of the 1999 Regulations applied. This gave W the right to special treatment in that, where there is a suitable available vacancy, it must be offered to a claimant on maternity leave. A failure to do so renders a subsequent dismissal automatically unfair. W had also suffered direct sex discrimination. SBC appealed to the EAT.
The EAT ruled that the dismissal had been automatically unfair.
The direct discrimination claim would be remitted. The fact that regulation 10 of the 1999 Regulations applied did not necessarily mean that there had been direct sex discrimination.
SBC had paid £400 to lodge the appeal and £1200 for the hearing. W was ordered to pay the £400 and half the hearing fee – a total of £1000.
This may arise where retained white workers score equally or worse than black, Asian or other ethnic minority workers.
Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ
O, an employee of C, was made redundant. She stated that the real reason for her selection for redundancy was her race. At a meeting she was intimidated by managers. She appealed against her dismissal and lodged a grievance. Both were ignored. C refused to engage in the ACAS early conciliation process. She complained of race discrimination. The ET upheld the claim and made the following awards:
£16,000 for injury to feelings (middle Vento band).
£5000 aggravated damages for failure to respond to the grievance and appeal, subsequent conduct of litigation and failure to apologise.
£3000 for personal injury (depression).
A 25% uplift for breach of the ACAS Code.
C appealed to the EAT. The EAT decided that the injury to feelings award was appropriate. The aggravated damages award was reduced by £1000 to avoid double counting with the 25% uplift.