Mrs N Osborn v Mothercare Global Brand Ltd: 3301207/2022
EMPLOYMENT TRIBUNALS
Case No 3301207/2022
Between
Mrs N OsbornClaimantMothercare Global Brand LtdRespondent
Before
Employment Judge Alliott
Members
Ms M HarrisMs P BarrattMs Amanda Marquarite-Robinson (instructed by counsel) for claimantMs Rachel Barrett (instructed by counsel) for respondentDate 31 October 2025
JUDGMENT
[1]The claimant was unfairly dismissed.[2]The claimant was discriminated against because she was treated unfavourably because she was exercising the right to additional maternity leave.[3]The claimant’s claims for automatically unfair dismissal and sex discrimination are dismissed.
REASONS
Conclusions
[1]The claimant was employed by the respondent as a Technical Manager on 12 April 2016. By 2020 she had been promoted to Technical and CSR manager. Her employment terminated on 3 December 2021. The reason given by the respondent was redundancy. By a claim form presented on 5 February 2022, following a period of early conciliation from 7 December 2021 to 12 January 2022, the claimant brings complaints of automatically unfair dismissal, unfair dismissal, maternity discrimination and direct sex discrimination. The respondent defends the claims.
The issues
[2]The issues were agreed and adopted by Employment Judge Tynan at a CMPH held on 11 October 2022. They are recorded in the case summary as follows: “AUTOMATICALLY UNFAIR DISMISSAL / ORDINARY UNFAIR DISMISSAL
The issues
[1]Was the reason/principal reason for C's dismissal on 3 December 2021 of a prescribed kind, namely pregnancy, childbirth or maternity (s99(3)a or s99(3)b) of the Employment Rights Act 1996 (ERA))? The Respondent denies this and asserts the Claimant was dismissed for a potentially fair reason pursuant to section 98(2)(c) of the ERA, namely redundancy.
The law
[2]If the Respondent cannot show that the Claimant was dismissed for redundancy, can the Respondent show that the Claimant was dismissed for some other substantial reason, namely business reorganisation pursuant to section 98(1)(b) of the ERA?[3]Was the Claimant’s dismissal fair within the meaning of section 98(4) of the ERA? In particular, did the Respondent act reasonably in treating that reason as sufficient for dismissing the Claimant? In considering whether the Respondent acted reasonably in treating redundancy as sufficient reason for dismissal, a Tribunal will often consider the issues identified by Browne-Wilkinson J in Williams v Compair Maxam Ltd [1982] ICR 156: warning; consultation; pooling; and the search for alternative employment.[4]If the Respondent failed to follow a fair procedure, can the Respondent show that following a fair procedure would have made no difference to the decision to dismiss? Automatic unfair dismissal (regulation 10 of the Maternity & Parental Leave etc Regulations 1999)[5]The Respondent submits that the Claimant's ordinary and additional maternity leave period was from 22 May 2020 to 21 May 2021. The Claimant, however, states that her ordinary and additional maternity leave period was from 23 May 2020 to 22 May 2021. a) Is Regulation 10 of the MPLR engaged, given the timing of the Claimant's redundancy? b) If so, was it not practicable for the Respondent to continue to employ the Claimant by reason of redundancy, during this maternity leave period? The Respondent's case is that the Claimant's redundancy took place later and after the end of the Claimant's maternity leave period. c) If so, was the Head of Technical role a suitable alternative vacancy which the Claimant was entitled to be offered under a new contract of employment? The Respondent disagrees as this was a more senior and higher paid role. The Tribunal will decide: i. Was the work to be done under it of a kind which was both suitable in relation to the Claimant and appropriate for the Claimant to do in the circumstances? ii. Were its provisions as to the capacity and place in which the Claimant was to be employed, and as to the other terms and conditions of her employment, not substantially less favourable to her than if she had continued to be employed under the previous contract of employment? DISCRIMINATION Maternity discrimination (section 18 of the Equality Act 2010)[6]The Protected Period of the Claimant's pregnancy and maternity started with her pregnancy (the Claimant is not sure of the exact date her pregnancy commenced but believes it would have been around midSeptember 2020). The Respondent submits that the Protected Period ended when her maternity leave ended on 21 May 2021, but the Claimant submits that her maternity leave ended on 22 May 2021.[7]The unfavourable treatment during the protected period alleged by the Claimant is that set out at paragraphs 7, 9, 10 (x 2), 13, 14, 15 and 16 of the Grounds of Complaint: a) In December 2020, the Claimant avers that when it became apparent that she would be taking additional maternity leave (this being her second period of maternity leave since joining the Respondent) and would likely be off work for the entire year, that was when the decision was taken to remove her husband as maternity cover and make changes to her role under the pretext of a general departmental restructure. b) Between December 2020 and April 2021, the Claimant alleges that approximately 30 modifications were made to the structure document which she was not informed of at any time or how it may impact her as she was on maternity leave. She claims that she only discovered this throughout the subsequent redundancy consultation process. Had she not been on maternity leave, the Claimant avers that either the restructure would not have been implemented at all or, if it had, that she would have been involved in the discussions and her role would not have been deleted. c) The Claimant avers that the role of Technical, Compliance and CSR Manager remained on the new structure chart initially, albeit with parts of the role being carved out and assigned to other newly created roles under the new proposal. At some point after April 2021, after Ben Alba went on long-term sick leave, the Claimant avers that the decision was made to delete the Claimant’s role entirely and create several new roles, including the Head of Technical role which (she) was whilst ostensibly more senior than her existing role and at a higher salary level nevertheless (was) almost identical to it in scope and which she says she had all necessary skills and experience to fulfil. d) During the redundancy consultation process the Claimant avers that she was informed that hers was the only role which was being deleted, with a new, more senior position being created at a higher salary band. Others in the team were to have changes to their roles in the new structure (which involved expanding their roles) but were not put at risk nor required to re-apply for their jobs. She claims that the only role with expanded duties which was put at risk of redundancy was the Claimant’s role, and she was the only person in the team who had been on maternity leave. e) The Claimant avers that she was told she could apply for the newly created role of Head of Technical (but was not given a job description or person specification for it until she repeatedly asked for them), but a second new role was not advertised by the Respondent and was filled prior to the Claimant being consulted about her redundancy. She claims that the Respondent did not keep her job open for her once she commenced her period of additional maternity leave for a reason connected with her having taken additional maternity leave and it failed to offer her suitable alternative employment on her return to work.[8]Did the Respondent treat the Claimant in the manner alleged?[9]If so, was the unfavourable treatment because the Claimant was exercising or seeking to exercise, or had exercised or sought to exercise, the right to ordinary or additional maternity leave, contrary to the Equality Act 2010?[10]Is the Respondent able to show a non-discriminatory reason for the treatment in question? Sex discrimination Direct discrimination (section 13 of the Equality Act 2010)[11]The Claimant confirms that she intends to pursue a claim for sex discrimination despite s18(7) Equality Act (see paragraph 34 of Grounds of Resistance). The Claimant refers to paragraphs 5, 8, 10, 16 and 17 of the Grounds of Complaint.[12]Did the Respondent treat the Claimant less favourably than a comparator was or would have been treated, by: f) removing her role of Technical & CSR Manager from its Technical and Sourcing Team structure, which the Claimant believes occurred between April and July 2021; g) permitting Chris Beeley to remove the Claimant’s role and/or being involved in the change/restructuring of her role [while the Claimant was not involved]; h) permitting Chris Beeley to create a role for himself or creating one for him; i) giving the role that was suitable for the Claimant to Chris Beeley and/or failing to offer it to the Claimant; and j) the subsequent redundancy.
The evidence
[13]If so, was the less favourable treatment because of / on the grounds of the Claimant's sex, contrary to the Equality Act 2010?[14]Did any less favourable treatment form a continuing act or ongoing state of affairs; or, if not, would it be just and equitable for the Tribunal to extend time for any less favourable treatment that would otherwise be out of time?” The law 3. Section 99 Employment Rights Act 1996 (“ERA”) provides as follows: “99 Leave for family reasons.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.(2) In this section “ prescribed ” means prescribed by regulations made by the Secretary of State.” 4. The regulations made by the Secretary of State under s.99 ERA are the Maternity and Parental Leave etc Regulations 1999 (“MAPLE”). Regulation[20]MAPLE provides, in so far as is relevant, that: “(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if—(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or(b) the reason or principal reason for the dismissal is that the employee is redundant, and regulation 10 has not been complied with. … (3) The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with— (a) the pregnancy of the employee; (b) the fact that the employee has given birth to a child; … (d) the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave or additional maternity leave; … (4) Paragraphs (1)(b) and (3)(b) only apply where the dismissal ends the employee’s ordinary or additional maternity leave period.” 5. The dismissal did not end the claimant’s ordinary or additional maternity leave period. It must follow therefore that paragraphs (1)(b) and (3)(b) do not apply. 6. It follows that if the reason or principal reason for the claimant’s dismissal was a reason connected with her pregnancy or the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave or additional maternity leave, then she will be regarded as unfairly dismissed contrary to s.99 ERA. 7. “Connected with” means causally connected with rather than some vaguer, less stringent connection, Atkins v Coyle Personnel Plc [2008] IRLR 420, EAT. Maternity discrimination (s.18 Equality Act 2010) 8. Section 18 of the Equality Act provides as follows: “18 Pregnancy and maternity discrimination: work cases (2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a) because of the pregnancy, or (b) because of illness suffered by her as a result of it. … (4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave. (5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period). … (7) Section 13, so far as relating to sex discrimination does not apply to treatment of a woman in so far as – … (b) It is for a reason mentioned in subsection (3) or (4).” Burden of proof 9. Section 136 of the Equality Act provides as follows: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” Unfair dismissal 10. Section 98 of the ERA provides as follows: 98 General. (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, 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… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” 11. section 139 ERA provides as follows: “139 Redundancy. (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (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.” The evidence 12. We had a hearing bundle of 394 pages. 13. The claimant provided a chronology and cast list and the respondent provided a revised list of issues (not agreed) and a note on the law. 14. We had witness statements and heard evidence from: (i) The claimant (ii) Ms Rebecca Leuty, HR Business Partner from 30 November 2020 (iii) Mr Christopher Beeley, a freelance consultant until joining the respondent as Head of Technical in February 2022. 15. In addition, we had a witness statement from Mr Andrew Osborn who was not called as his evidence was not challenged. 16. Both parties provided us with written closing submissions. LinkedIn contact 17. Approximately two hours after the conclusion of the hearing on Friday 9 August 2024, non-legal member, Ms Barratt, became aware that both Mothercare and Mr Chris Beeley had observed her on LinkedIn and her credentials had been looked at. Mr Beeley tried to connect on LinkedIn as Ms Barratt received a “I want to connect” message. 18. Ms Barratt did not respond. 19. This information is disclosed so that all parties are aware of it. 20. We record that we have totally disregarded this contact. The facts[21]The claimant was employed on 12 April 2016 as Technical Manager in the Technology Department at Grade M2.[22]The respondent has a maternity policy. This provides: “C During your maternity leave … Keeping informed Your line manager will ensure you are kept informed of any important changes in the workplace, which may directly affect you on your return to work. Before you go on leave, discuss with them how best to contact you.” And “D Returning to work … At the end of ordinary maternity leave (ie weeks 1 to 26), you will be able to return to your original job with the same terms and conditions of employment you held before taking maternity leave. At the end of additional maternity leave (ie weeks 27 to 52) and if it is not reasonably practicable for you to return to the same job, we will find you a suitable alternative role with the same grade and on terms and conditions which are no less favourable than the original job.”[23]In 2017 the claimant took 12 months maternity leave. The claimant’s role was advertised externally and maternity cover was brought in for a year. The claimant told us that during this first period of maternity leave she had regular contact with her line management and was also told of activity in the office.[24]In January 2019 the claimant’s job title was changed to Technical & CSR manager at Grade M2. Whilst the claimant’s grade remained the same, she took on extra duties which included line managing a team of six and taking on CSR responsibility.[25]The claimant became pregnant around August/September 2019.[26]The claimant’s Mat B1 form dated 20 February 2020 gave a due date in the week commencing 24 May 2020.[27]The maternity leave and benefits letter dated 29 April 2020 sets out that the claimant’s maternity leave was from 23 May 2020 until 22 May 2021. The respondent later asserted that the maternity leave was from 22 May 2020 until 21 May 2021. In our judgment, nothing material turns on the difference.[28]The claimant’s baby was actually born on 6 May 2020. No adjustment to her maternity leave was made however due to the fact that the claimant went on annual leave on 1 May 2020.[29]In November 2019 Mothercare UK went into administration. The franchise arm of the business remained and was renamed Mothercare Global Brand, the respondent. The claimant remained employed by the respondent and she was given a new line manager who became Director of Sourcing, Mr Ben Alba.[30]When the claimant informed Ben Alba that she was pregnant she made enquiries as to whether she should look for maternity cover. Ben Alba believed maternity cover would not be necessary as he could support the team. We do not find that this was anything other than a legitimate business decision. We do not find that this evidenced a decision that the respondent was not interested in maintaining the claimant’s role.[31]In February 2020, with the covid virus becoming more prevalent, the claimant began working from home.[32]The respondent’s business went in to full lockdown with the country in March 2020.[33]As the weeks went by it became clear that maternity cover would be required for technical issues. The claimant was asked if her husband, a consultant, would be interested in a contract as an Interim Technical Manager. The claimant’s husband is Mr Andrew Osborn. Andrew Osborn was offered the role on 23 April 2020, accepted it on 24 April 2020 and began on 27 April 2020. Initially his engagement was for three months. On 23 July 2020 Ben Alba confirmed that the contract would be extended by another three months to 27 October 2020.[34]In September 2020 Ms Karen Tyler joined the respondent as Chief Product Officer, becoming Ben Alba’s line manager and replacing him as Head of Product. Ms Rebecca Leuty states that a key reason for her recruitment was to drive product development and increase profitability, albeit that that is her understanding as she was not with the respondent at that point.[35]Mr Chris Beeley was a Technical Director at a children’s/nursery retailer called Mammas & Pappas where he worked for 18 years. During that time he met Karen Tyler who also worked for Mammas and Pappas.[36]The unchallenged evidence of Andrew Osborn is that towards the end of his second three months (late October 2020) he had a ‘Teams’ meeting with Ben Alba and was informed that the respondent would not be further extending his contract.[37]Shortly before 9 November 2020, Chris Beeley started his own consultancy. Soon after he announced his consultancy he was contacted by Karen Tyler. The respondent and Chris Beeley entered into a three month consultancy agreement and Chris Beeley began working for the respondent as of 9 November 2020. We have not been provided with a copy of the consultancy agreement and so have not seen it.[38]Chris Beeley’s evidence was that he was brought in to support strategic projects with the Chief Operating Officer, Mr Kevin Rusling. The specific projects he initially worked on were: “(i) Drafting a new Manufacturing Partner Agreement to be put in place with each of our manufacturing partners(ii) Advising the board on how we could have representation in the Far East without opening an office there, and implementing that plan;(iii) Project Evolve, direct shipment to our franchise partners from our manufacturing partners.”[39](ii) and (iii) would involve working with Ben Alba and the Technical Department. Chris Beeley states that he did not undertake the day to day work of the claimant.[40]We find that Karen Tyler clearly had a high regard for Chris Beeley. In our judgment, a new-in-post Chief Product Officer is very unlikely to bring in an individual to work with her Chief Operating Officer unless she had full confidence in his abilities.[41]We have not heard from Karen Tyler. No contemporary documentation concerning Chris Beeley’s recruitment has been placed before us. We find that the termination of Andrew Osborn’s engagement and the engagement of Chris Beeley are connected.[42]The unchallenged evidence of Andrew Osborn is that Ben Alba told him that the explanation for the non-extension of his contract was nothing to do with his performance and that it was the business reviewing its contractor costs/policies.[43]Becky Leuty suggested that this was Ben Alba being tactful and that the real reason was dissatisfaction with Andrew Osborn’s performance. She told us she understood there were emails to this effect. Her information came from Ben Alba and is hearsay. No emails have been produced to us which could easily have been done. We do not accept this evidence as it is uncorroborated hearsay and contradicts what Andrew Osborn says he was told.[44]We find that in all probability Karen Tyler decided to dispense with Andrew Osborn as she was going to bring in Chris Beeley to cover, to an extent, the working of the Technical Department and to assist Ben Alba. Chris Beeley was clearly capable of covering the claimant’s role as, later, he was engaged on a fixed term contract on 1 May. We have an email dated 26 April 2021 from Lauri Giambrone, Head of People at the time, to the claimant which states: “I am writing to let you know that Ben will be out of the office for at least the next two weeks and will be uncontactable during that time as he will be undergoing urgent surgery. In order to ensure ongoing support to the team, we have engaged Chris Beeley on a fixed term contract to cover the Technical & CSR Manager role until you return to the business following your maternity leave He will also cover elements of the Sourcing Director role in the short term until Ben has fully recovered.”[45]Given that Lauri Giambrone was Head of HR, we find that she was likely to know the position and this is likely to be accurate.[46]We do not find that the termination of Andrew Osborn’s engagement was connected to or because it became apparent that the claimant was taking additional maternity leave. We find that it was because Chris Beeley had been engaged.[47]Andrew Osborn’s contract was extended by four weeks “to tidy any loose ends” which covered the start of Chris Beeley’s engagement.[48]Chris Beeley’s consultancy agreement was extended on 1 February 2021 for another three months.[49]This case principally concerns the reorganisation of the Technical Team and the assertion that the claimant’s role became redundant. In this context we have serious concerns that we have heard no evidence from Karen Tyler or Ben Alba, the principal architects of the reorganisation and the alleged redundancy situation. The fact that Karen Tyler has left the organisation did not present an insurmountable obstacle to her giving evidence. We understand Ben Alba has a health condition. Even in the absence of those two individuals giving oral evidence, we would have expected this process to be heavily documented and very little has been placed before us.[50]In the circumstances we have looked at such information as we have to try and discern how the reorganisation/redundancy process came about.[51]As we have already found, Karen Tyler joined the respondent in September 2020 and on 9 November 2020 she brought in Chris Beeley.[52]Chris Beeley gave evidence that he “was aware of the proposal to reshape the Technical Team to make it fit for purpose, and worked closely with Ben Alba on devising a suitable structure for the team.”[53]We have a document described in the index as “Global Sourcing CSR Technical Org Meta Data”. This refers to a four slide document titled “Global Sourcing and Technical” and shows that the document was created on 18 December 2020 by Chris Beeley. Given that it is unlikely that Chris Beeley created that document in a vacuum, it is clear to us and we find that earlier in December 2020 discussions were probably taking place as to how the Sourcing Technical Department could be reorganised. We have been provided with various organisation charts for the Technology, Compliance and CSR Departments. The first one that has been provided to us is dated January 2021. This has the claimant’s role described as follows:- “Andrew Osborn Interim Technical & CSR Manager (M2) Nicky Osborn, Mat Leave April 2020”[54]Reference to Andrew Osborn could suggest that these proposals were being discussed prior to his departure at the end of November 2020.[55]The proposed structure from January 2021 retained the claimant’s position at M2 but with a job title of “Technical Manager”. A Mr Jon Manzi held the role of Packing Manager in the Brands Team. The proposed structure was to transfer Jon Manzi to the Technology Compliance and CSR Department with a job title “Sourcing & Manufacturing CSR Manager”. We note that the CSR aspect to the claimant’s job title appears to have been transferred to Jon Manzi. Chris Beeley put it as follows:- “In addition, under changes previously introduced by Ben, the Packing Manager role held by Jon Manzi had been expanded slightly to ensure he was fully utilised. Jon already administered the onboarding of new manufacturing partners, so it seemed sensible to train him on the complexities regarding the agreements with manufacturers which Ben had previously had to pick up, as there was no one else in the team who could do this work.”[56]Whilst the respondent sought to play down the extent of Jon Manzi’s CSR responsibilities, we find that aspects of the claimant’s role were being moved to Jon Manzi.[57]In February 2021, a Ms Emma Pearce was interviewed for the vacant role of Fabric & Garment Technology Lead at Grade M1. She was appointed to the position and, having to serve three month’s notice at her existing employer, began work for the respondent on 10 May 2021.[58]The proposed new organisational chart went through various iterations. The final one still has Jon Manzi described as “Sourcing & Manufacturing CSR Manager M2” and he had reporting to him two A2 positions who, from the organisational chart in January 2021, used to report to he claimant.[59]We have been provided with job descriptions for the claimant and Jon Manzi’s roles which we have not found particularly helpful. The claimant estimates that two thirds of her role had been allocated to others whereas the respondent contends that it was far less. Doing the best we can, we find that a significant part of the claimant’s role was removed and allocated to others during this period. In support of this conclusion we note that two of the three justifications for the claimant’s redundancy were that a Technology Lead would be created and the packaging role was to include manufacturing partner management and CSR. We note that Emma Pearce currently holds the Lead Technical role.[60]In April 2021 Ben Alba unfortunately was out of the office due to a condition that may have needed to involve surgery.[61]Ben Alba was the Sourcing Technical and Ethical Director at Grade M4. It was not usual to have a Director heading up a department and most departments were headed up by M3 grades. It was the claimant’s evidence that her technical expertise was greater than Mr Alba’s and she often briefed him on those issues.[62]Throughout April/May 2021 the claimant completed her “Keep in Touch” (KIT) days.[63]The claimant’s maternity leave ended on 22 May and the claimant took annual leave until returning to work on 29 June, albeit working remotely. The office had changed location and the claimant did not have a pass or parking space.[64]We have looked in detail at what information we have concerning the decision to make the claimant’s role redundant. Given that we have not heard from Karen Tyler or Ben Alba, the first indication comes from the witness statement of Chris Beeley. He states:- “I was aware of the proposal to reshape the Technical Team to make it fit for purpose, and worked closely with Ben Alba on devising a suitable structure for the team. However, it was Karen Tyler who then sponsored those proposals, obtaining operating board approval to proceed and then informing the claimant of the proposal at the end of July 2021.”[65]Later in his witness statement he says:- “In July 2021, after Ben had had his surgery and it was unclear how long he would be absent, Karen asked me for some advice about the structure of the Technical Team.”[66]Notwithstanding those comments, we have been provided with no contemporaneous emails or other documentation dealing with how it was that the decision to make the claimant’s role redundant was arrived at. We find this extraordinary. In our judgment, it is inconceivable that there would not have been email exchanges between Karen Tyler, Ben Alba and Chris Beeley, not least since Ben Alba was off sick and only working occasionally remotely and Chris Beeley was also predominantly remotely working. The reference to Karen Tyler obtaining operating board approval suggests to us that there must have been some sort of management document dealing with the issue.[67]Chris Beeley goes on to state:- “I was invited to a call via WhatsApp on 21 July 2021 with Ben, and Lauri and Becky from HR. We discussed at this meeting Karen’s proposal to remove the Technical manager role.”[68]We have been shown an email dated 21 July 2021. This is from Lauri Giambrone, Head of People, to Becky Leuty, Interim HR Business Partner, and Chris Beeley. The email is headed “Tech Team catchup” and states:- “Hi both Can you be available for a call on WhatsApp with Ben – to discuss structure. Thanks. L”[69]It is noticeable that Karen Tyler is not part of that discussion. Becky Leuty states in her witness statement:- “The first I was told about a potential review and restructure of the Technical Team was 21 July 2021… Then on 21 July I had a 121 meeting with my manager Lauri Giambrone and she informed me I would be required to assist the business with a further restructuring proposal relating to the Technical Team… I was invited to a meeting with Lauri, Chris Beeley and Ben Alba to discuss this. Ben was on sickness leave at the time, but despite his leave, was involved with work and was continuing to answer emails and take part in discussions. We held the call via WhatsApp to accommodate Ben in particular. On 21 July having discussed the plan I started preparing documents and planning time into Karen Tyler’s diary for the relevant consultation meetings.”[70]Once again, we find it extraordinary that the respondent has not disclosed any contemporaneous documentation leading up to that meeting on WhatsApp on 21 July 2021. We find it inconceivable that there would not have been email exchanges between Karen Tyler and Chris Beeley concerning this alleged restructure.[71]The WhatsApp meeting was scheduled to begin at 15.00. It cannot have lasted very long because at 15.21 Becky Leuty emailed Karen Tyler suggesting dates for a meeting with the claimant to tell her that her role was removed.[72]On 22 July, the claimant emailed Karen Tyler requesting an introductory meeting because she had never met her. Karen Tyler had been on leave for the first two weeks following the claimant’s return to work.[73]As the claimant had requested a meeting, so it was decided to use that meeting to inform the claimant that her role was redundant.[74]On 23 July 2021, the claimant had a Teams meeting with Karen Tyler. She states“Before I could introduce myself Karen told me that the business was making changes and my role had been put at risk of redundancy. I was completely blindsided by this news, I obviously found this very upsetting, and the call ended with Karen telling me that she would be inviting me to a consultation meeting, and I would receive a letter and invite.”[75]We have a letter dated 23 July 2021 from Karen Tyler to the claimant but signed on behalf of Karen Tyler by Becky Leuty. This states:- “Re: Invite to individual consultation meeting I am writing to invite you to an individual consultation meeting in relation to the proposed removal of the role of Technical & CSR manager. The administration of Mothercare UK, in November 2019, significantly changed the landscape of the business and since then, we have continued to transform the way we work to accommodate both the commercial imperatives and ongoing operational needs of Mothercare Global brands; making the business leaner and less complex. Accordingly, we have continued to review our structure in the context of costs and the capability needed to successfully deliver our goals. In order to create a narrower focus and clarity in accountability, we are proposing a clearer delineation between product technology, product compliance/franchise partner support and future manufacturer relationship. Therefore unfortunately, the role of Technical & CSR Manager is at risk of redundancy.”[76]The claimant was invited to an individual consultation meeting on 29 July.[77]In preparation for the meeting on 29 July Becky Leuty wrote a script for Karen Tyler. This states:- “I wanted to have a chat with you about your role and a transformation piece we are now about to start. The administration of Mothercare UK back in November 2019 significantly changed the landscape of the business and since then, we have continued to transform the way we work to accommodate both the commercial imperatives and ongoing operational needs of Mothercare Global; making the business leaner and less complex. Accordingly, we have continued to review our structure in the context of costs and the capability needed to successfully deliver our goals. Therefore unfortunately, the role of Technical & CSR manager is at risk of redundancy. … Potential questions Question: How could you do this straight after maternity leave? A: Unfortunately, there is never a good time to start a process like this, however your maternity leave has not been a factor. It has become apparent recently that Ben is going to be off longer than we originally anticipated and this has pushed us into looking at the structure of the team to ensure the best performance is still achieved. However, if you have more questions on timing then we can discuss at your first consultation meeting. Q: Has Chris Beeley been brought in to take my job? No, Chris has great historical experience and has done senior roles for other key brands so he has not been operating at your current level. He has been covering Ben’s role which reflects the level he is operating at. If you have more questions about Chris’ role, we can discuss at the first consultation meeting. Q: What is happening with the structure/what will replace my role and can I apply for a new role? A: Yes, in order to create a narrower focus and clarity in accountability, we are proposing a clearer delineation between product technology, product compliance/franchise partner support and manufacturer relationship. We are therefore proposing the following changes:• Creation of a M3 Head of Technical role with focus on strategic accountability linked to wider business strategy; accountability for delivering to our three year business plan (product types, origins and sales channels). Transforming our technical model in partnership resourcing to enable our future ambitions.• Creation of a Technology Lead to focus operational delivery and new product development.• Expansion of the Packing Manager role to include partner management and CSR.”[78]From the questions, it is clear to us that Becky Leuty was alive to the fact that the claimant was being made redundant shortly after effectively returning from maternity leave. The question concerning Chris Beeley is, in our judgment, curious. Why should Becky Leuty be anticipating such a question in circumstances where it is the respondent’s case that Chris Beeley had not been covering her job (the email referenced in paragraph 44 is said by the respondent to be erroneous) and was undertaking far more senior strategic activity. In our judgment, this could indicate that there had been discussions about Chris Beeley taking over her role.[79]In due course, some slides were prepared for the meeting on 29 July. The first slide we have quotes verbatim two of the paragraphs from the script. When asked about those paragraphs Becky Leuty told us that she assumed the wording had come from Karen Tyler. She said she assumed it had been given to her after 21 July. She told us it was either in an email or that Karen Tyler called her and she typed as Karen Tyler spoke. Once again, we find it extraordinary that there is no documentary trail concerning this wording.[80]The first consultation meeting took place on 29 July 2021. It was conducted by Karen Tyler with Becky Leuty as the notetaker. We have the respondent’s notes of the meeting as well as a transcript of the meeting due to the fact that the claimant recorded it covertly. The new proposed structure chart presented at the meeting is virtually identical to one that had been created in March 2021. The only material difference is that the claimant’s role of Technical Manager M2 was now described as Head of Technical M3. We note that the Sourcing & Technical Director role (Ben Alba’s) remains on that chart. The meeting lasted from 14.00 until 14.27. Karen Tyler set out that two new roles were to be created, namely Head of Technical M3 and technology Lead and that the Sourcing Packaging and Manufacturing Manager’s role had been expanded. The claimant was told that in terms of redeployment she would have an opportunity to look at alternative roles within the organisation.[81]The claimant was invited to a second consultation meeting on 24 August 2021. Once again, the claimant covertly recorded this meeting and so we have a full transcript, Once again, the meeting was short, lasting from 11.00 until 11.26. The claimant had clearly consulted a solicitor as she read out a statement which includes the following:- “Chris was then brought in to the business as a Contractor and I was told in writing by HR on April 2020 that he was my maternity cover. He is also seemingly covering for my boss who is on long term sick leave but as I’ve been told he is not my boss and therefore I don’t report to him, it is evidently the case that he is in fact my maternity cover albeit he is also now covering for Ben who is off sick. Chris is the person who has drafted the proposed restructure and the company has evidently decided to eliminate my role to enable him to retain, to be retained in the business.”[82]Later in the transcript of this meeting, Karen Tyler is recorded as saying:- “Karen Tyler: So we have looked at where we believe we need the skill set for the future growth and transformation of the business. What that then meant was we looked at the role that you currently have which is the Technical and CSR manager and we looked at the skill set needed within the team to lead and spearhead that growth. That therefore created the potential of us having an M3 role which is a broader more senior role which is Head of Technical. So when we talk about you mentioned cost, when we talk about leaner this we didn’t approach from the point of view of looking at the cost, we looked at the structure, we looked at the needs of the business and then we said what is the best way to run our business, so this is not just about this role and a cost, we didn’t approach it in that way, we looked at what we needed as a structure and therefore how we can run you know we talk about being an asset light business, we talk about being a lean business, that is not about cost cutting, that is about making sure we’ve got the right structure for the growth of the business. Ben was here in the business at the time before he was poorly and he was the one that worked with me on the structure of the team. Claimant: So Ben’s put this structure together? Karen Tyler: Ben and with myself have looked at the structure. Now obviously he has got experience across the Technical Team and he’s got experience across sourcing and he’s got experience across product because he headed up all of the products, so he had a very rounded view. Claimant: Well that interesting. Karen Tyler: Because you were on maternity leave and because Chris Beeley had been brought into the business as a fixed term contract with Chris’ experience Ben will have used his input I would imagine to actually be able to then think about the structure itself, so Ben and I, so he will have used Chris Beeley’s input but Ben and I were the ones who formally then pulled the structure together.”[83]We note from this extract that at that time there was no suggestion that Ben Alba’s role was going to be extinguished. Whilst Ben Alba had been of sick since April, it is clear that he had been working remotely on occasions. We have noted from the respondent’s closing submission that the redundancy situation advanced on behalf of the respondent is very much on the basis that Ben Alba’s position at M4 and the claimant’s at M2 were both to be abolished and a single M3 Head of Technical created. This appears in the respondent’s closing submissions as follows:- At 40:- “The claimant’s role was redundant because the requirements of the respondent’s business for employees to carry out work of the particular kind done by the claimant were expected to diminish (section 139 ERA). This was because the team management formally undertaken by both the claimant (“hands on” as she put it) and Ben Alba (strategic) were to be restructured under a single grade M3 Head of Technical. Whereas previously the respondent required two employees to discharge different aspects of management functions, in future it would require one. This was a classic redundancy situation.” And at 47(b):- “As noted above, there was an obvious business efficiency in creating a role for a single grade M3 Head of Department, instead of retaining an M2 Manager (the claimant) and an M4 Director (Ben Alba).” We reject this analysis. Ben Alba was involved in making the ‘restructure’ and his role was not to be extinguished at that time. The M4 role being made redundant only emerged much later.[84]At the end of the second consultation meeting the claimant requested the job description for the Head of Technical and was sent it in due course.[85]We have an email dated 3 September 2021 from Karen Tyler to the claimant. This reiterates Karen Tyler’s position as follows:- “The process relating to pulling together the new structure, involved myself and Ben Alba assessing if we currently have a structure that will help us move into the next phase of the business for Mothercare. We looked at all current roles within the Technical and Sourcing Team and what skill sets were needed to spearhead and lead this growth. It became clear that a senior and broader role, an M3 Head of Technical, was needed to define the global technical strategy of MGB and ensure that it meets the global strategy of the business among other duties which are listed on the job description you were provided. The current duties of the Technical and CSR manager role are not at this level and as mentioned to you in the second consultation meeting, we did not approach this as a point of costs, we looked at the structure and needs of the business. The process for defining the Technology Lead role has not begun yet and will be done in conjunction with the postholder of the M3 Head of Technical. As mentioned previously, please do let me know if you wish to apply for the M3 Head of Technical role.”[86]On 8 September 2021, the claimant lodged a grievance by way of response to Karen Tyler’s email. The grievance included an allegation that a failure to offer the claimant an alternative role was a clear act of maternity discrimination.[87]On 8 November 2021, a third consultation meeting was held that was also in connection with the claimant’s grievance. Both sides effectively reiterated their position. The following is recorded:- “Susanne Bailey: …You talked about that there are some differences between your role and this new role, is that right? Claimant: Well the job descriptions are almost identical, there are a few additional pieces of wording in there, that talk about strategy and strategic budgeting I think it is, those are really the only differences that I can see from the role that I am currently doing to the new proposed M3 role. Susanne Bailey: Yeah and on this role you haven’t applied for that role, no? Claimant: No because part of this grievance hearing is to find out why I need to apply for it because I should have already been considered for it so I can’t until the outcome of this grievance I am unable to apply for it.”[88]A fourth consultation meeting took place on 24 November 2021. This was again conducted by Susanne Bailey. Again familiar issues were discussed. The claimant was told that if she wanted to apply for the Head of Technical role she had until Monday 29 November 2021 to apply for it.[89]The claimant was invited to a final consultation meeting on 29 November 2021 but responded in an email which concluded:- “I therefore see no way whatsoever in which I can either continue working for Mothercare or in which my termination can be deemed anything other than unfair and discriminatory.”[90]Becky Leuty stated in her witness statement:- “We took this to mean that the consultation had been exhausted and she was not expressing interest in the Head of Technical post. As such, the final consultation meeting did not take place on 29 November 2021.”[91]On 3 December 2021, Susanne Bailey wrote to the claimant “Re: Outcome to redundancy consultation process and grievance complaint.” The letter states:- “I am writing to confirm the outcome of the redundancy consultation process for the role of Technical & CSR Manager. In summary, I confirm that role is redundant. You have declined to apply for the vacancy of M3 Head of Technical, despite the application deadline being extended at your request. As you know, the company has explored ways in which your redundancy could be avoided, and the possibility of alternative employment. Unfortunately, it has not been able to identify any suitable alternative employment for you or any way in which your redundancy could be avoided.”[92]The letter concludes:- “As we have not been able to find a way to mitigate the Technical & CSR Manager role from being made redundant and as you have not applied for the Head of Technical role by the specified date, then I can confirm that regrettably, your employment with the company is terminated by reason of redundancy with effect from today’s date 3 December 2021.”[93]Becky Leuty states in her witness statement that it was considered that there was no longer a need for Ben Alba’s role alongside the new M3 Head of Technical. She states that there was a proposal to put Ben at risk of redundancy at the same time as Nikki. We reject that evidence as it is inconsistent with the evidence that Ben Alba was involved with Karen Tyler in the creation of the new M3 role. It only emerged much later, towards the end of 2021.[94]At some time later in 2021, Ben Alba was placed at risk of redundancy. There was a consultation period (the dates of which we are unaware) and Ben Alba was made redundant on 10 December 2021. He worked his notice period until June 2022.[95]On 20 December 2021, the respondent advertised the Head of Technical role. Karen Tyler conducted the interviews, Chris Beeley applied and was successful. He was appointed Head of Technical on 18 February 2022.
Conclusions
[96]We find that Karen Tyler had a high regard for Chris Beeley and wanted to bring him into the organisation.[97]We find that, at a time when the claimant was on maternity leave, probably in November/December 2020, Karen Tyler decided she wanted to replace the claimant with Chris Beeley. We find this having considered all that happened thereafter and the fact that on 18 February 2022 Chris Beeley was appointed M3 Head of Technical. We find it particularly illuminating that the script prepared by Becky Leuty for Karen Tyler in advance of the meeting on 29 July 2021 to tell her that she was redundant included an answer to the question “Has Chris Beeley been brought in to take my job?”. We find that anticipating such a question would be unlikely if, as maintained by the respondent, Chris Beeley had not been covering the claimant’s job whilst she was on maternity leave. We find that Chris Beeley was covering (at least in part) the claimant’s job while she was on maternity leave as well as covering aspects of Ben Alba’s job and other projects. Becky Leuty and, we suspect Karen Tyler, were both acutely aware that the claimant was being informed she was redundant within a month of her effective return from maternity leave and that they were proposing to place Chris Beeley into her role.[98]We find that Karen Tyler, probably in conjunction with Chris Beeley, then set about managing the claimant out of the business.[99]We find that the reorganisation that began in December 2020 and ran through to the end of the financial year in April 2021 was in order to structure the Technical department so that the claimant’s role could be presented as disappearing. Parts of her role were given to others, principally CSR to Jon Manzi and the new Technology Lead post created and recruited with Emma Pearce. However, fundamentally Chris Beeley was to replace the claimant and do her job. In order to present this as a redundancy the respondent had to present the new Head of Technical as a different role. The grading at M3 was to pay Chris Beeley more. The strategic aspect was, we find, cosmetic in that it would duplicate Ben Alba’s role.[100]We find that the fact that the claimant’s role remained on the organisation charts (albeit with CSR removed) was because she was on maternity leave and the respondent did not want to suggest that her role was disappearing during the protected period. The respondent had to keep her position for her to return to or offer her a suitable alternative. Nevertheless we find that the respondent had decided to dispense with the claimant and was waiting for her maternity leave to come to an end before doing so. We find that the speed with which the claimant was told her position was redundant after returning from maternity leave (and holiday) supports this.[101]We find that there was nothing that occurred between the end of the claimant’s maternity leave and 29 July 2021 that changed the position and suddenly caused the respondent to decide to make her M2 role redundant. We accept that Ben Alba remained off sick and the longer he was off sick the more it posed questions as to whether he would ever return. However, we do not find that this caused a change for the respondent at that time. Ben Alba was, according to the respondent, involved in discussing the restructure and there was no explanation at any stage that the rationale behind the extinguishing of the M2 role was that the M4 role would also go, leading to a costs saving.[102]We find that there was no genuine redundancy situation. We find there was no cessation or diminishment in the requirement of the business for the claimant’s work to be undertaken. Whilst it may have become more apparent during the course of 2021 that Ben Alba would not return, this only probably became apparent late in 2021. As such, any reorganisation contemplated in late 2020 and up to at least August 2021 expressly retained Ben Alba as M4 Resource & Technical Director. In that position he was responsible for strategic issues. As such, the M3 Head of Technical would be doing the claimant’s job as any expertise on a strategic level would be duplicating Ben Alba’s role.[103]As we have found there was no genuine redundancy situation, so we find that regulation 10 MAPLE is not engaged.[104]Nevertheless, in the event that there was a genuine redundancy situation, we find that this arose during the claimant’s maternity leave. The transfer of certain parts of the claimant’s role had taken place by 10 May 2021 (CSR transfer and Emma Pearce’s engagement). The decision to remove her role had been taken. We have considered the wording of Regulation 10(1), namely: “Where during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.”[105]We have considered whether it is sufficient for a decision to have been made, as we find was the position here, in order to trigger the obligation to offer suitable alternative employment or whether it is necessary for the claimant to be informed or put on notice of risk of redundancy or the redundancy situation to be announced first. We have taken account of the case of Sefton Borough Council v Wainwright UKEAT/0168/14/LA which decided that it was open to the Employment Tribunal to conclude that there was a redundancy when the council decided that two positions would be replaced by one (IDS: Maternity and Parental Rights at 4.68). Further, we have noted the observations of HH Judge Eady QC in Sefton at 43:- “If it is also left to the employer to decide when a redundancy actually occurs – so, to determine when the obligation under Regulation 10 arises - it is easy to see how that position might be abused.”[106]We find that the redundancy situation did arise during the claimant’s protected period as a decision had been made that it was not practicable by reason of redundancy for the respondent to continue to employ her. We find that the process was delayed until after the claimant returned from maternity leave in order to avoid the Regulation 10 obligation.[107]We find that the position of Head of Technical was a suitable alternative role for the claimant to be offered. We reject the respondent’s contention that it was not suitable. We find that it was created by and for Chris Beeley. Indeed, in a first draft he graded it M2 and it was only later changed to M3. M3 obviously has a higher salary but that was the respondent’s choice, no doubt in order to make it attractive to Chris Beeley. We find that the role was essentially the same as the claimant’s existing role and that the “strategic element” has been overplayed by the respondent. We find that the work to be done was of a kind which was both suitable in relation to the claimant and appropriate for her to do in the circumstances. Further, we find that the provisions as to capacity and place and as to the other terms of her employment were not less favourable to her than if she had continued in her previous role. We note the comments in the IDS Handbook at 4.73:- “The question may also arise as to whether, if there is a suitable and appropriate vacancy, the employer is obliged to offer it to the employee under Regulation 10 even if this involves offering it at a higher salary or on better terms and conditions than it would otherwise have supported. Assuming the content of an available role is suitable and appropriate, we suggest that the wording of Regulation 10 implies that it should be offered to the employee even if this means the terms and conditions need to be bettered in order to ensure that the new contract is ‘not substantially less favourable’ than the old.”[108]Consequently, we find that if there was a genuine redundancy situation it arose during the claimant’s protected period, Regulation 10 was engaged and she should have been offered the Head of Technical role.[109]However, we find that there would not have been an automatically unfair dismissal for failure to comply with Regulation 10 as the claimant’s dismissal did not end her maternity leave period.[110]Accordingly, the automatically unfair dismissal claim as set out in the list of issues is dismissed.[111]We find that the decision to remove the claimant’s husband as maternity cover was unfavourable treatment. We find it was not causally linked with the claimant taking additional maternity leave. We find it was because Chris Beeley had been engaged.[112]We find that the decision to make changes to the claimant’s role under the pretext of a general departmental restructure was unfavourable treatment and was to implement the decision to replace the claimant with Chris Beeley. To that extent, the treatment alleged in issue 7(a) is proved.[113]As regards issues 7(b) - (e) our findings are as follows:114. 7(b): Between December 2020 and April 2021 a number of changes were made to the structure document and the claimant was not informed at this time how it would impact her and that this was while she was on maternity leave. We make no finding as to what may have happened had she not been on maternity leave as this is speculation and not treatment. To that extent treatment 7(b) is proved.115. 7(c): We find that although the claimant’s role remained on the structure chart initially the decision to replace her with Chris Beeley had been taken in December 2020/early 2021 and not after April 2021. We have found that the role of Head of Technical was essentially identical to the claimant’s role and that it was suitable for her. To that extent treatment 7(c) is proved.116. 7(d): Treatment 7(d) is factually proved save that the claimant’s role did not involve expanded duties.117. 7(e): We find that the claimant was told she could apply for the role of Head of Technical and was given a job description after requesting one. We find that the other role referenced was the Technology Lead role filled by Emma Pearce in January 2021 with her start date of 10 May 2021. That was a Grade M1 role and not a suitable alternative role for the claimant. We find that the respondent did not keep the claimant’s job open for her when she returned from maternity leave and did not offer a suitable alternative role either pursuant to Regulation 10 MAPLE or indeed pursuant to Regulation 18 MAPLE. To that extent treatment 7(e) is proved.[118]We find that the treatment found proved in 7(a),(b),(c) and (e) (as regards not offering alternative employment ) was unfavourable treatment.[119]We find that the treatment was whilst she was exercising the right to additional maternity leave. We have found the alleged redundancy situation was a sham. We find that those are facts from which the court could decide, in the absence of any other explanation, that the respondent contravened section 18 of the Equality Act by treating the claimant unfavourably because she was exercising the right to additional maternity leave. We find that the respondent has not shown that it did not contravene the provision and consequently we must hold that the contravention occurred.[120]We find that the treatment alleged at 12(f),(g),(h), (i) and (j) has all been proved.[121]By virtue of Regulation 18(7) MAPLE we find section 13 Equality Act 2010 does not apply to this treatment due to our findings above.[122]We find that the principal reason for dismissal was that the respondent wanted to replace the claimant with Chris Beeley. We do not find that the principal reason for dismissal was connected with the claimant’s pregnancy or the fact that she availed herself of the benefits of additional maternity leave. Accordingly, we do not find that he claimant was automatically unfairly dismissed. We do not find that the reason for dismissal was some other substantial reason, namely business reorganisation.[123]We find that the reason for dismissal was not a potentially fair reason. Accordingly, we find that the claimant was unfairly dismissed.[124]Although time is not listed as an issue in the list of issues, it has been raised by the respondent. In our judgment, there was a continuous course of conduct from November/December 220 until the claimant’s dismissal on 3 December 2021. As such, the claimant’s claims are in time.[125]Having found that there was no genuine redundancy situation, so we find that ‘Polkey’ is not engaged and there is no chance that the claimant would have been dismissed in any event. Her job remained and she should have been able to return to it or she should have been offered the role of Head of Technical.[126]We do not find that the claimant contributed to her dismissal by not applying for the role of Head of Technical. We have found that, had there been a genuine redundancy situation, she should have been offered the role. In our judgment, in circumstances where she had been discriminated against, she was justified in adopting the position she did. Employment Judge Alliott Date:26/11/2024 N Gotecha Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/[1]This is a remedy hearing, judgment on liability having been sent to the parties on 27 November 2024.
The law
[2]Mr Cook helpfully provided us with a skeleton argument which included submissions on the law. We record that we have read and taken into account those submissions. The submissions include the following:- Mitigation of loss[3]Section 123(4) Employment Rights Act 1996 provides as follows:- “In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales…[4]In Archbold Freightage v Wilson [1974] IRLR 10, the EAT said:- “The dismissed employee’s duty to mitigate his or her loss will be fulfilled if he or she can be said to have acted as a reasonable person would do if he or she had no hope of seeking compensation from his or her previous employer.”[5]In Gardiner-Hill v Rowland Berger Technics Ltd [1082] IRLR 498, the EAT provided guidance to assist tribunals when considering mitigation. The ET should consider the following issues:5.1 What steps were reasonable for the claimant to have to take in order to mitigate his loss?5.2 Did the claimant take reasonable steps to mitigate his/her loss?5.3 To what extent, if any, would the claimant have actually mitigated his loss if he/she had taken those steps?[6]The burden is on the respondent to prove failure to mitigate. In this regard, it is not sufficient to show that there were other reasonable steps that the claimant could have taken but did not take. The respondent must show that the claimant acted unreasonably by failing to take those steps (Wilding v British Telecommunications Plc [2002] ICR 1079 CA).[7]In Savage v Saxena [1998] ICR 357, the EAT suggested the following approach:7.1 Firstly, identify what steps should have been taken by the claimant to mitigate her loss.7.2 Secondly, arrive at a date upon which taking such steps would have produced an alternative outcome.7.3 Thirdly, reduce the compensation by the amount of income that would have been earned. Injury to feelings[8]In Prison Service and others v Johnson [1997] ICR 275, the EAT summarised the general principles that underline awards for injury to feelings: Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party. An award should not be inflated by feelings of indignation at the guilty parties conduct. Awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches. Awards should be broadly similar to the range of awards in personal injury cases. Tribunals should bear in mind the value in everyday life of the sum they are contemplating, and Tribunals should bear in mind the need for public respect for the level of the awards made.[9]The tribunal’s focus should be on the effect, not gravity, of the discriminatory act(s). Aggravated damages[10]In Commissioner of Police of the Metropolis v Shaw [2012] ICR 464, the EAT identified three types of cases where an aggravated damages award may be appropriate: Discrimination done in a high-handed, malicious, insulting, or oppressive manner. Where the motive for the discrimination was evidently based upon prejudice or animosity, or was spiteful, vindictive, or intended to wound. Where subsequent conduct adds to the injury such as where the employer conducts subsequent ET proceedings in an unnecessarily offensive manner.[11]In Zaiwalla and Co and another v Walia [2002] IRLR 697, the EAT confirmed that aggravated damages may be awarded based on the subsequent conduct of the employer in legal proceedings.[12]As per the IDS Handbook at 37.121:- “The EAT stressed in Zaiwalla that its decision should not be taken as a “green light” for claimants to claim aggravated damages in respect of the alleged misconduct of proceedings as a matter of course. This was an exceptional case, and cases where an award of aggravated damages will be made in respect of such behaviour would be few and far between.” The evidence[13]In addition to the material placed before us at the liability hearing we had a remedy bundle of 153 pages. This included a witness statement from the claimant from whom we heard evidence.[14]Mr Cook provided us with a written skeleton argument for which we are grateful. Delay[15]We apologise for the delay in reaching our conclusions and sending out this judgment. This was caused by difficulties in reconvening to deliberate due to an unforeseen funeral that a non-legal member had to attend that clashed with the original deliberation date in June 2025.
The facts
[16]The claimant was dismissed with immediate effect on 3 December 2021.[17]The claimant was paid her statutory redundancy payment. Consequently, we award no basic award.[18]The claimant was paid 12 weeks PILON and PILOB which covered her salary and benefits until 25 February 2022. Accordingly, the claimant has suffered no loss for this period.[19]The claimant has advanced her loss of earnings claim on two alternative basis. Her primary submission is that she would have been appointed to the position of Head of Technical at a gross annual basic of £90,000. Alternatively, she would have continued to work in her existing role as Technical & CSR Manager on a gross annual basic of £64,387.96.[20]In paragraph 107 of our liability judgment we found that the position of Head of Technical was created by and for Chris Beeley and that it was given a higher salary in order to make it attractive to Chris Beeley.[21]We find that on the balance of probabilities the claimant would have continued in her substantive role of Technical and CSR Manager Grade M2 and would not have been appointed to the position of Head of Technical, which would not have existed at that point.[22]Accordingly, in our judgment the claimant stands to be compensated based on her existing salary.[23]The claimant started applying for alternative roles in September 2021 prior to her dismissal. Between 8 September 2021 and the end of January 2022 the claimant made six applications for alternative employment. Her CV clearly identifies her as well qualified as she was offered five interviews, one a second interview.[24]On 23 February 2022, the claimant was offered employment with Parkdean Resorts on a salary of £45,000 based on a four-day week. She began working for Parkdean Resorts on 19 April 2022.[25]The respondent accepts that it was reasonable for the claimant to accept the Parkdean role notwithstanding that it was at a materially lower salary than her role at the respondent and was a four-day week appointment.[26]It was clear from the claimant’s evidence to us that the Parkdean role suited her particular circumstances with a young family. It was clear to us that working four days a week with flexibility to work from home and in close proximity to her children’s school was very desirable as far as the claimant was concerned.[27]Since obtaining the Parkdean role the claimant has not applied for alternative, better paying work in order to fully mitigate her losses. We find that that would have been a reasonable step to take to mitigate her loss.[28]The claimant gave a number of reasons why she had not looked for alternative roles. She told us that her health and confidence had been impacted by her treatment by the respondent. We have taken into account the occupational health report obtained in November 2021 (which will be referred to in the injury to feelings section) but the claimant accepted that by March 2022 onwards there was no health reason why she could not apply for alternative roles.[29]The claimant disputed that she had not been looking for a job and stated that she had just not found anything suitable. When it was suggested to the claimant that there was a high demand for her skills and expertise, she responded that there had been a momentary swamp of technical roles when she was applying in late 2021/early 2022 and that since a recession many roles had ceased to exist. She told us that her husband, who has the same role as her, was made redundant last year and it took him six months to find alternative employment.[30]The respondent has produced a number of documents illustrating roles that are presently available. Whilst the claimant rejected some as unsuitable, it does indicate to us that there are jobs available.[31]We do not accept that the job market was as bad as the claimant told us. We find that the claimant’s current job with Parkdean entirely suits the claimant’s work/life balance and that there has been no impetus for her to apply for and obtain work at a comparable salary to when she was working for the respondent. The respondent has suggested as an alternative that had the claimant remained in the respondent’s employment she would probably have applied for flexible working with a concomitant reduction in hours and salary for family reasons.[32]We find that it would have been reasonable for the claimant to take time whilst working for Parkdean to find, apply for and secure employment at a comparable rate to that which she had with the respondent. We find that she probably would obtain a comparable salary with her skillset. We find that the claimant could and should have obtained alternative employment a year after she began working for Parkdean. Thereafter, we find that her conduct in not securing comparable employment was an unreasonable failure to mitigate her loss.[33]The respondent has accepted and adopted the claimant’s figures for calculating financial loss. These are as follows:-33.1 The claimant’s net weekly pay figure at the respondent was £923.54.33.2 The claimant’s weekly pension contribution at the respondent was £98.79.33.3 The claimant’s net weekly pay figure at Parkdean was £715.35. This gives a net weekly loss of £208.19 .33.4 The claimant’s pension contribution at Parkdean is £25.33. The net weekly loss is therefore £73.46.[34]Accordingly, we award compensation for loss of earnings and pension as follows:-34.1 From 25 February-19 April 2022: as per the respondent’s calculation £6,834.20 net salary plus pension contribution of £731.05.34.2 We award diminution in earning capacity from 20 April 2022-19 April 2023: 52 x £281.65 = £14,645.80. Deductions[35]The recoupment regulations do not apply to compensation for discrimination and, accordingly, the claimant must give credit for Job Seekers Allowance of £1,237.89. Although the claimant’s schedule of loss gives credit for mortgage insurance received, we make no allowance for that as, under ordinary tortious principles, the tortfeasor does not get the benefit of the claimant’s prudence and foresight in taking out an insurance policy.[36]The total award for loss of earnings is therefore £22,211.05 – £1,237.89, total £20,973.16.[37]We award interest at 8% from 19 September 2022 (the mid-point of loss) to 30 September 2025.[38]Three years eleven days at £1,677.85 per annum = £5,084.11.[39]In addition, we allow £500 for loss of statutory rights. Injury to feelings[40]In our judgment, the fact that the discrimination involves the loss of the claimant’s employment and career takes this case out of the lower Vento band. Further, in our judgment, given that the duration of the discrimination was relatively short at under six months so this case does not lie in the upper Vento band.[41]The claimant has sought to advance a case that the treatment of her exacerbated her pre-existing PTSD and fibromyalgia. However, the claimant has not produced any medical evidence to that effect. Nevertheless, we have taken into account the occupational health assessment report dated 9 November 2021. In the opinion and recommendation sections the following is set out:- “Is there a health condition present, and if so, is it fluctuating, permanent or resolvable? The GAD-7 and PHQ-9 questionnaires indicate that Nikki is currently experiencing severe symptoms of anxiety and depression. These conditions are both treatable and are, in Nikki’s case, not permanent. With the appropriate treatment i.e. medication and talking therapies the prognosis for full recovery is very good. I would recommend that Nikki commence Talking Therapies, for example, CBT as soon as possible as well as seeking more EMDR. … Nikki’s fibromyalgia symptoms are currently fluctuating and are likely to continue until the issues at work come to an end. Her autoimmune inter-connective tissue disorder appears stable but as the symptoms of this are very similar to those of fibromyalgia it is difficult to differentiate between the two.” And “2. Is there evidence of any work-related element to the health problem, and if so, can you identify the relevant factors? It appears likely that the current stress of undergoing both a grievance and consultation for redundancy are very stressful events in life and therefore it is likely that her current health conditions are being triggered by this stress.”[42]In her witness statement the claimant sets out the effect on her in terms of loss of confidence both leading up to and immediately after her dismissal. She references an increase in medication in December 2021 having a positive effect on her anxiety and her PTSD which started to settle down in February/March 2022.[43]In our judgment, an appropriate figure for injury to feelings would be towards the middle of the mid-Vento band and we assess that an appropriate and proportionate sum would be £20,000.[44]We award interest on the £20,000 from 3 December 2021 at 8%. Three years, 302 days = £6,123.86. Aggravated damages[45]The claimant seeks an award of aggravated damages on the basis that the way the respondent conducted itself, in particular in cross examination, when it was put to the claimant that she had lied, was unnecessarily offensive. We accept that being cross-examined robustly is not a pleasant experience but on the other hand it is only to be expected in the adversarial system. In our judgment, the conduct of the hearing before us did not cross the line into an exceptional case that would warrant aggravated damages. Accordingly, we make no award under this head.[46]Consequently, we find that the claimant should recover the following sums:- Compensation for loss of earnings: £20,973.16 Interest thereon: £5,084.11 Loss of statutory rights: £500. Injury to feelings: £20,000. Interest thereon: £6,123.86: TOTAL: £52,681.13 Grossing up[47]Given that we have found that the discrimination consisted of a sham redundancy process, so we have treated the injury to feelings as being related to the termination of employment. As such, the injury to feelings damages will be taxable.[48]The taxable element of the total award made will fall into the higher rate of taxation, namely 40%.[49]The first £30,000 will be tax free. Consequently, £22,681.13 needs to be grossed up. £22,681.13 ÷ .6 = £37,801.88. £30,000 + £37,801.99 = £67,801.88. Approved by: