Background:

The claimant was dismissed during her maternity leave by reason of redundancy.  The claimant argued that the redundancy was a sham and that she suffered less favourable treatment because of her sex and/or because of the pregnancy and maternity.

The issue arose when a new Chief Executive sought to recruit a Business and Financial Analyst during the claimant’s maternity.   During the process it was then decided that it would include the claimant’s position.  The claimant was then informed that she was at risk of redundancy due to the decision to amalgamate her role with a new role.  She was invited to apply for the new role.  The claimant did not apply but instead stated that the redundancy was a sham.  A stand-off then took place until the claimant was dismissed with immediate effect on 31st July 2019.

Outcome:

The Tribunal, at first instance, dismissed the claim.  They held that Reg 29 if the Maternity and Parental Leave etc Regulations 1999 did not apply on the basis that there was no suitable alternative vacancy.  They did find that the burden of proof did shift to the respondent but held that the redundancy was not a device to get rid of the claimant and thus dismissed the claims.

The claimant appealed to the EAT.   The EAT held that it was a necessary step that the Tribunal would consider whether there was a genuine redundancy situation.   There are some cases in which the Tribunal can move straight to suitable alternative vacancy but this was not one of those considering the facts and the claimant’s arguments.  The fact that it had failed to do so there was no way in which the Tribunal could find if there was a genuine redundancy and whether the basis of the decision was on fair grounds.  As a result, the case was remitted back to the Tribunal.

Practical Guidance for Employers:

A question regularly raised when doing discussions or events on redundancy is whether a member of staff on maternity can be dismissed by reason of redundancy.  The answer to that is yes, but that there must be a genuine redundancy situation and the basis upon which individuals are selected for redundancy is fair.  It goes without saying that the reason for selection cannot be the pregnancy or the maternity leave.  In this case, the need to demonstrate a genuine redundancy scenario is one that the Tribunal then has to determine and as it was not done it led to the decision being unsafe.

https://assets.publishing.service.gov.uk/media/6673f9757d0f95cd08d0db85/Miss_Helen_Ballerino_v_The_Racecourse_Association_Ltd__2024__EAT_98.pdf