In this case the Employment Appeal Tribunal (EAT) held that an employment tribunal erred in rejecting claims of pregnancy discrimination and automatic unfair dismissal by a woman dismissed during her maternity leave, purportedly by reason of redundancy.
Facts
Ms Ballerino began working for the Racecourse Association in August 2018 as a financial accountant overseeing day to day bookkeeping and signing off on accounts. She was employed to work 40 days a year predominantly from home. She was pregnant when she began in her role and in December 2018 she started maternity leave. In February 2019, during Ms Ballerino's maternity leave, a new CEO was appointed. He had a new vision for the commercial support the Racecourse Association provided which involved creating a new role of Business and Financial Analyst. The position was advertised externally. Originally the Business and Financial Analyst role did not involve Ms Ballerino's workload but on 13 June 2020 the job description for the new role included Ms Ballerino's work with a new title of Business and Financial Analyst.
On 14 June 2020 Ms Ballerino was contacted and at a meeting on 18 June she was told her role was at risk of redundancy because of the decision to amalgamate roles. She was provided with the job description of the new role and invited to apply but at same time provided with a settlement agreement with instructions to sign within five days. Ms Ballerino did not apply for the new role, maintaining that the redundancy process was a sham and that she had been subjected to sex and pregnancy/maternity discrimination. In the alternative she argued that if there was a redundancy the dismissal was unfair.
The employment tribunal rejected her claims. It found that the new role was not a suitable alternative vacancy, so there was no requirement for the employer to slot her into it. They also rejected Ms Ballerino's contention that the redundancy had been a device to get rid of her and, although finding that the burden of proof has shifted to the employer, they dismissed her claims of discrimination. Ms Ballerino appealed to the EAT which allowed her appeal. Of particular interest in the EAT's decision is that:
- Given the facts in this case - involving the introduction of a new role, into which Ms Ballerino's position was to be subsumed - the question of whether there was a genuine redundancy could not be answered as a matter of impression.
- Although it might be possible to proceed straight to the question of suitable alternative vacancy in some instances (assuming that the dismissal was by reason of redundancy), the facts of the present case gave rise to a potential overlap between the assessment of suitability and the determination of whether there was a redundancy.
- The tribunal was therefore required to satisfy itself that there was a genuine redundancy situation for the purposes of section 139 of the Employment Rights Act 1996, and it had not.
- Specifically, the tribunal did not ask itself whether the need for employees to carry out financial accounting work had ceased or diminished, or was expected to do so.
- In respect of the discrimination claims, having found that the burden of proof had shifted to the employer the tribunal had to determine whether the former employer had demonstrated a non-discriminatory explanation for its treatment of Ms Ballerino. In circumstances where the respondent was relying on what it said was a redundancy, but the claimant said this was a sham, the tribunal was required to engage with the question whether there had in fact been a redundancy; and it had failed to do so.
- The fact there were no documents about the rationale for either the new role as originally proposed or its final expanded form, made the EAT sceptical about its introduction.
What this means for employers?
This case is a reminder that when undertaking a redundancy exercise an employer must not fall into the same trap as the tribunal and jump the gun by moving straight onto an assessment of suitable alternative employment. Employers should consider whether there is a redundancy under the statutory test, and ideally have documents to show the rationale and reasons for this. This is particularly the case where there is a risk of a discrimination claim in addition to an unfair dismissal claim, and especially with maternity leavers who have additional rights which need to be considered in a redundancy situation.
