Happy New Year everyone and welcome back to this week’s case. If you missed our December newsletter, click here to read it. This week, we look at a case of automatic unfair dismissal surrounding redundancy during maternity leave in the case of Walsall Metropolitan Borough Council v Christine Owen.
Background
The Claimant was employed by Walsall Metropolitan Borough Council as a Care Manager from 5 September 2005 until 24 December 2021, when she was dismissed due to redundancy. Her dismissal took place while she was on maternity leave.
Initially, the Claimant brought claims to the Employment Tribunal (ET) alleging maternity discrimination under section 18 of the Equality Act 2010 and sex discrimination. However, these claims were dismissed at a preliminary hearing on 13 December 2022, after she withdrew them. Subsequently, a separate claim of maternity discrimination proceeded to a hearing held from 25-27 September 2023. During this hearing, the tribunal considered whether the Claimant had also raised a claim of automatic unfair dismissal under section 99 ERA. Section 99 protects employees from dismissal primarily due to pregnancy, childbirth, or maternity-related reasons.
The Claimant alleged that the Respondent had failed to comply with regulation 10 by not offering her a suitable alternative vacancy during the redundancy process, rendering her dismissal automatically unfair. However, the Respondent argued that no such claim had been included in her original application to the ET and that introducing this claim amounted to an amendment outside the applicable time limits.
Employment Tribunal Decision
The ET had to consider whether they had jurisdiction on the claim for automatic unfair dismissal under section 99 when it was not explicitly pleaded in the claimant’s original ET1. The ET had allowed the claim to proceed without treating it as an amendment.
The EAT considered whether the ET should have treated the introduction of the section 99 claim as an application to amend the original claim. If it constituted an amendment, the ET needed to determine if the amendment was permissible due to the statutory time limit for bringing claims under section 99.
The EAT also reviewed whether the ET had properly considered the Respondent’s obligations under regulation 10. This regulation requires employers to offer suitable alternative employment to employees on maternity leave before making them redundant.
The EAT ruled that the ET erred in assuming jurisdiction to determine the claim of automatic unfair dismissal. The section 99 claim was not clearly included in the claimant’s original claim form. The EAT emphasised that tribunals must ensure claims are clearly articulated at the outset to allow respondents to understand the case they must answer.
The EAT held that the ET should have treated the introduction of the section 99 claim as an application to amend the original claim. The proper course of action would have been for the tribunal to consider whether to allow the amendment, applying established principles. This includes considering the reasons for the delay in raising the new claim, the extent of prejudice to both parties, and whether the amendment would be in the interests of justice. As the time limit for bringing a section 99 claim had already expired, granting an amendment required careful judicial consideration, which the ET failed to undertake.
The EAT highlighted that regulation 10 creates a positive duty on employers, and a failure to meet this duty can automatically render a redundancy dismissal unfair.
The EAT allowed the Respondent’s appeal, finding procedural and substantive errors in the ET’s handling of the case. The case was remitted to a different ET for reconsideration, ensuring procedural fairness and compliance with employment law principles.
Takeaway Points
Claimants must ensure their claims are clearly set out in their ET1 forms. Introducing new claims during proceedings can complicate matters, especially if the time limits for those claims have expired.
Employers should be aware of their heightened duties under regulation 10 when managing redundancies involving employees on maternity leave. Failure to offer suitable alternative employment can result in claims of automatic unfair dismissal.
Leave A Comment