“My role as Head of Enforcement Local Taxation was identified for redundancy in July 2021. Despite repeated attempts by myself to be provided with a new job description, no formal process was undertaken at that time or in subsequent months ... I was informally advised of an alternative suitable role, which I agreed to on the basis it was expressed to me. It was not until March 2022, 8 months after I had taken on significant additional workload to enable my transition in to this new role, that the goal posts were moved to include an element of significant travel (to London and Epping which are a 9 hour-plus round trip for me). Furthermore when I had raised my limitations regarding travel over the course of the 8 months, I was told that it was not a problem and could continue to meet via MS Teams as was done throughout the business. As I was unable to fulfil this new requirement (which I believe was a disingenuous requirement), due to childcare limitations, a formal consultation process was undertaken which resulted in my redundancy. Had a formal consultation taken place at the point my role of Head of Enforcement Local Taxation was identified for redundancy, my opportunities might have been different. During the consultation process, I put forward the argument that the alternative role could be undertaken without significant travel; the frequency and reason for the travel both in written correspondence and expressed verbally had been inconsistent with nothing to substantiate the reasons given; however, there was evidence to the contrary demonstrating that it was not company culture or custom. I therefore maintain that there was a reasonable alternative role which I was the most suitable candidate to undertake. I believe the reason this was rejected was because the structure had been pre-determined, which did not involve me in the position ... Therefore, the discussions around travel were disingenuous as this requirement was added as a way to ensure I could not accept the alternative role, and it could therefore be successfully given to the pre-determined individual.”
“I was very clear to the business that it was not ... that I was unwilling to undertake any travel, but I was unable to commit to the job description including “travel when required”, considering the distances involved and time it would take to complete said journeys, for the sole reason of my childcare commitments. I informed them that if my circumstances permitted, I would attend any face to face meeting, but as I hold the burden of childcare for my two young children, I could not commit to a carte blanche statement. Their inconsistencies in correspondence, and unwillingness to provide any solid clarification in verbal discussions, created a situation where there was no option for me. The travel locations included London and Epping, which would have involved a 9-hour plus round trip from my home address which they were unwilling to take into consideration. I therefore believe I have been the subject of indirect sex discrimination as a mother and a female. I evidenced to them that adjustments could be made, and in fact in the appeal hearing, it was confirmed that feedback regarding my performance from across the business was “amazing”, despite the vast majority of communication held with colleagues remotely. Therefore, the role could have continued to be done with meetings held over MS Teams when required, as is done extensively throughout the business on a daily basis, and I could have continued in the alternative role of Head of Enforcement Services, as offered to me in July 2021.”
“(12) The claimant complains about her dismissal. The claimant accepts that she was made redundant by the respondent, in circumstances of a genuine redundancy situation. The claimant further accepts that there was no unfairness in the identification of her as redundant. (13) The claimant’s [sic] will say that the respondent did not make sufficient or proper efforts to find alternative work that would have avoided the need for her employment to be terminated. Specifically, the claimant will say that there was a discussion about a specific role with the title of “Head of Enforcement Services” or “Head of Enforcement Services Center”
“76. ... a woman who is the primary carer of two small children would not be able to perform all elements of the Grade 3 management role with a requirement to travel significant distances, because of the difficulty in finding childcare to cover the hours the woman would be away from home.”
“77. The Tribunal took judicial notice of the fact that, unless a woman can employ a live in childcare provider, it is only possible to secure childcare between the hours of 7am and 6pm. The requirement to travel significant distances would require a woman to leave home before 7am and return after 6pm. The requirement to travel significant distances would therefore put women, as primary carers, at a particular disadvantage.”
“78. ... female Grade 3 managers, as primary carers, in comparison with male Grade 3 managers, would be put at a particular disadvantage by the requirement to travel significant distances.”
“85. ... it was not proportionate to require travel of significant distances in the claimant’s role to fulfil the aim of business efficacy and staff morale. Instead, it appears that this was the culture within the respondent and something that the respondent wanted but not what was needed. 86. The claimant had done the job for a period of ten months without complaint and had the confidence of the staff in contrast to David Burton who was working face to face with staff. The Tribunal determines it was not reasonably necessary to travel significant distances to achieve the legitimate aims. 87. The claimant was willing to travel reasonable distances and meet face to face or virtually if significant travel was required. The Tribunal determines the legitimate aims could have been achieved in this way.”
“The parties agree that there was a potentially fair reason for dismissal undersection 98 Employment Rights Act 1996 , namely redundancy.”
“96. ... the Tribunal does not determine that the claimant’s concession during the case management hearing was binding on the claimant. The claimant is a litigant in person, and it is clear from appeal and grievance and from the evidence she gave during the final hearing and in submissions that she only opted for the redundancy reason because she did not want the respondent to pursue a disciplinary investigation.”
“98. ... the need for the claimant to work for the respondent was not redundant” reasoning: “... this does not meet the definition of redundancy set out atsection 139 of the Employment Rights Act 1996 . The respondent did not cease to carry on the business for the purposes of which the claimant was employed or in the place that the claimant was employed. In fact, the respondent proposed to move more work to Helmshore for the claimant to manage. In addition, the requirements of the respondent’s business for the claimant to carry out the role of the management of Enforcement services in Helmshore did not cease or diminish.”
“99. ... had no choice but to agree to a redundancy dismissal rather than a disciplinary dismissal to protect her future prospects for employment going forward. This is not the same as the claimant agreeing that there was a genuine redundancy situation.”
“100. ... because she would not travel significant distances following the respondent’s reorganisation.”
“102. ... The respondent’s witnesses ... provided no evidence that there was a risk to the respondent’s operation of the business if the claimant, in her very particular circumstances, was allowed to manage her teams remotely. There was no evidence from the respondent of the future acquisitions or of particular details of employees who would similarly have problems travelling significant distances. 103. The respondent relied on the legitimate aim of business efficacy and staff morale. The claimant provided evidence that the team that she managed remotely had no criticism of her management but in fact had criticism of David Burton and another colleague who were based in Epping. The claimant had successfully managed that team remotely over a period of months. ... 105. The Tribunal determines that the respondent has not provided evidence that there was a sufficient reason to introduce the requirement for significant travel. Instead, the Tribunal determines that the respondent has a culture of requiring Grade 3 Managers to travel significant distances without ever assessing if there was a real need for such a requirement.”
“(1) ... it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it- ... (c) is that the employee was redundant, ...”
“(1) ... an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to- ... (b) the fact that the requirements of that business- ... (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are— … sex; …”
“(1) On a comparison of cases for the purposes of section … 19 there must be no material difference between the circumstances relating to each case. …”
“41. … all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it. This makes sense. It also matches the language of s.19(2)(b) which requires that “it” – ie the PCP in question – puts or would put persons with whom B shares the characteristic at a particular disadvantage compared with persons with whom B does not share it. There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison.”
“22. … the starting point for identifying the pool is to identify the PCP. Once that PCP is identified then the identification of the pool itself will not be a question of discretion or of fact-finding but of logic.”
“.… If the [claimant] can realistically identify a [PCP] capable of supporting her case … it is nothing to the point that her employer can with equal cogency derive from the facts a different and unobjectionable requirement or condition.”), having regard to that PCP, it is then for the ET to determine the appropriate pool, and there may be - depending on the PCP in issue - a range of logical options open to it; as Cox J opined in Ministry of Defence v DeBique[2010] IRLR 471 , EAT: “147. In reaching their decision as to the appropriate pool in a particular case, a tribunal should undoubtedly consider the position in respect of different pools within the range of decisions open to them; but they are entitled to select from that range the pool which they consider will realistically and effectively test the particular allegation before them.”
“31. … Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen.”
“56. ... particular disadvantage can be established in one of several ways, including the following: a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine; b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared; c. The disadvantage may be inherent in the PCP in question; and/or d. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken.”
“42. ... a. There are two broad categories of matters of which judicial notice may be taken: (i) facts that “are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry”; and (ii) other matters that “may be noticed after inquiry, such as after referring to works of reference or other reliable and acceptable sources”. b. The Court must take judicial notice of matters directed by statute and of matters that have been “so noticed by the well-established practice or precedents of the courts”: c. However, beyond that, the Court has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence; d. The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.”
“was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.”
“46. ... (b) Whilst the childcare disparity is not a matter directed by the statute to be taken into account, it is one that has been noticed by the courts at all levels for many years. As such, it falls into the category of matters that, according to Phipson, a tribunal must take into account if relevant.”
“48. ... We are sympathetic to the notion that if a party seeks to rely upon a matter in respect of which judicial notice is to be taken, then it should identify that matter up front. There are several reasons for taking that approach: a. First, it seems to us to be consistent with the principle, which was not disputed, that the burden in terms of establishing that a matter is capable of being judicially noticed lies with the party seeking to rely upon it. b. Second, it is preferable that all parties and the Tribunal are aware of precisely what it is that should be judicially noticed. Whilst the childcare disparity is uncontroversial and accepted by the Respondent, other related matters are not. For example, it is not accepted that the childcare disparity necessarily means that any requirement to work flexibly will put women at a disadvantage compared to men. Flexible working can mean different things in different contexts. Some types of flexible working, e.g. the ability to work any seven-hour period between the hours of 8am and 6pm, might even be considered advantageous by some with childcare responsibilities. It seems to us that giving advance notice of the matters sought to be relied upon would reduce the scope for disagreement later. A matter in respect of which judicial notice may be taken, by its very nature, ought to be one that is uncontroversial. The fact that it is not might cast doubt on whether it really is so notorious and well-established that it can be accepted without further inquiry. c. It is in the interests of fairness that the other party be given an opportunity to respond and comment. The Tribunal would be entitled to take judicial notice of a matter, notwithstanding any objection by the opposing party, if it is satisfied that that is warranted. However, the Tribunal may well be better placed to make that assessment once it has heard any argument to the contrary. d. However, that does not mean that a party needs to plead the term “judicial notice” expressly in order for adequate notice to have been given. Depending on the context, the nature of the claim and, if relevant, the specialist nature of the tribunal, it might suffice if the allegation being made contains an assertion that could be established by evidence or by the taking of judicial notice. In a claim of indirect discrimination, an assertion that a particular PCP puts women at a disadvantage because of their childcare responsibilities as compared to men, would be sufficient, in our view, to identify a matter in respect of which judicial notice could be taken. The childcare disparity is very well-established. It is frequently referred to in the authorities (see above) and is also referred to in the EHRC Code of Practice, which the Tribunal is obliged to take into account. As such, there is little need for more to be said by way of pleading. Furthermore, as a specialist employment tribunal, the childcare disparity is a matter that falls within the scope of its specialist expert knowledge and can be taken into account without more. We consider that approach to be consistent with the general direction of travel of making it easier for litigants to establish claims of indirect discrimination, and the fact that claims are often brought by litigants in person, who may be aware of the childcare disparity, but who may have no knowledge of the principles relating to judicial notice. e. The Claimant and the Intervenor appeared to go further in suggesting that the Tribunal was bound to take judicial notice of the childcare disparity even where there is no notice of the issue ... [but] the Tribunal cannot be treated as a “repository of knowledge” that will rush to the aid of a party whose case lacks clarity or would otherwise flounder for want of evidence.”
“49. ... put her, “as a woman, at a particular disadvantage when compared to men on the basis that women are more likely to be child carers than men”. ... In our judgment, that pleaded case provides sufficient notice of the issue in respect of which judicial notice is invited: the Tribunal was expressly being asked to find that women are more likely to be child carers than men and that this put women in general, and the Claimant specifically, at a disadvantage in the context of being required to work flexibly.”
“50. ... taking judicial notice of the childcare disparity does not necessarily mean that the group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question. The childcare disparity means that women are more likely to find it difficult to work certain hours (e.g. nights) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities. If the PCP requires working to such arrangements, then the group disadvantage would be highly likely to follow from taking judicial notice of the childcare disparity. However, if the PCP as to flexible working requires working any period of 8 hours within a fixed window or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to the Tribunal to conclude that the group disadvantage is not made out. Judicial notice enables a fact to be established without specific evidence. However, that fact might not be sufficient on its own to establish the cause of action being relied upon. As is so often the case, the specific circumstances will have to be considered and one needs to guard against moving from an “indisputable fact” (of which judicial notice may be taken) to a “disputable gloss” (which may not be apt for judicial notice): see HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School[2018] IRLR 334 (CA) at para 108. Taking judicial notice of the childcare disparity does not lead inexorably to the conclusion that any form of flexible working puts or would put women at a particular disadvantage.”
“53. ... It does not need to be impossible for an employee to comply with a requirement before there is a disadvantage. The fact that compliance is possible but with real difficulty, or with additional arrangements having to be made, or by shifting the childcare burden on to another, can still mean that there is a disadvantage.”
“. . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.”
“22. ... Although the [provision] refers only to a “proportionate means of achieving a legitimate aim”, this has to be read in the light of the Directive [Council Directive 2000/78] which it implements. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question ... 23. A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate. ... [Both EU and domestic law] require that the criterion itself be justified rather than that its discriminatory effect be justified ... 24. Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. ... 25. To some extent the answer depends upon whether there were non-discriminatory alternatives available. ... [While] an ad hominem exception may be the right answer in personnel management terms but it is not the answer to a discrimination claim. Any exception has to be made for everyone who is adversely affected by the rule. ...”
“33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from [the PCP] ... in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. ..., a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind ... the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification. 34. The power and duty of the employment tribunal to pass judgment on the employer’s attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions.”
“38. … what is ‘necessary in the interests of justice’ in the context of the tribunal’s powers under rule 29 [ET Rules] depends on a number of factors. One is the stage at which amending the list of issues falls to be considered. An amendment before any evidence is called is quite different from a decision on liability or remedy which departs from the list of issues agreed at the start of the hearing. Another factor is whether the list of issues was the product of agreement between legal representatives. A third is whether amending the list of issues would delay or disrupt the hearing because one of the parties is not in a position to deal immediately with a new issue, or the length of the hearing would be expanded beyond the time allotted to it.”
“43. It is good practice for an employment tribunal, at the start of a substantive hearing, with either or both parties unrepresented, to consider whether any list of issues previously drawn up at a case management hearing properly reflects the significant issues in dispute between the parties. If it is clear that it does not, or that it may not do so, then the employment tribunal should consider whether an amendment to the list of issues is necessary in the interests of justice.”
“84. … the ET … [has] a duty, if it is obvious from the ET1 that a litigant in person is relying on facts that could support a legal claim, to ensure that the litigant in person does understand the nature of that claim. In addition, if the ET decides that the litigant in person has decided not to advance that claim, the ET should be confident that the litigant in person has withdrawn that claim advertently.”
“contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises …”
“58. … where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should … be slow to conclude that it has not applied those principles, and should generally only do so where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal's mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. ...”
“26. … The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues.”
“21. If ... the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, ...; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from the findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal.”
“16. In any event, the Tribunal’s determination as to C’s entitlement to change her position should have been made prior to the Reasons, and the new claim which she advanced at the hearing (and which ultimately succeeded) should have been properly set out, such that R had the opportunity to appeal that determination or seek an adjournment and/or at the very least was clear what case it had to meet.”