In the case of Sefton Borough Council vs Wainwright, the Employment Appeal Tribunal (EAT) analysed the rights of women on maternity leave to be offered a suitable available vacancy in a redundancy situation.

Suitable available vacancy is best defined as a job that is both suitable and available. 

The employer in the case came to the conclusion that two jobs would be replaced by a single and newly created position.  Wainwright, who was on maternity leave and the employee who occupied the other position made redundant, were both interviewed for the new position.  Wainwright was not offered the job and was made redundant.  She claimed discrimination and unfair dismissal. 

Wainwright’s claim succeeded mainly due to the fact that her employer did not comply with its duty to offer her a suitable vacancy where one was available.  In this particular situation, the redundancy arose as part of a restructuring and reorganisation.  The EAT said that “where this involved a reduction in employees doing a particular type of work, without any change in the terms and conditions of those who retained their jobs,” there was no right to be given preference in the redundancy selection processes. 

In Wainwright’s particular case, the new post was a suitable available vacancy. Had she been the only candidate she would have been slotted automatically and wouldn’t have had to compete for the position.  In this case, if the employer offered Wainwright an appropriate job, not a new role, it could have possibly avoided any liability of unfair dismissal. 

The EAT did overturn the tribunal’s decision that the employer’s failure to offer the vacancy also constituted maternity discrimination.