Case No 8001650/2024Venue EdinburghHearing 7, 8, 9, 10 July and 17 November 2025 Member’s meeting held on 19 December 2025
Between
Samantha NelsonClaimantLloyds Banking Group plcRespondent
Before
Employment Judge M SutherlandMr B McKinlay (instructed by Solicitor) for claimantMr R Bradley for respondentOf counsel for respondent[instructed by for respondentPinsent for respondentMasons LLP] for respondentDate 30 January 2026
JUDGMENT
The unanimous judgment of the Tribunal is that the complaints do not succeed and are accordingly dismissed.
REASONS
[1]The claimant has made complaints of maternity discrimination and unfair dismissal which are denied by the respondent. In summary, the claimant was dismissed by stated reason of redundancy during her maternity leave.[2]A final hearing was listed to determine liability and remedy. Both parties had professional representation.[3]Parties lodged a joint bundle of documents and had agreed a Statement of Facts. The claimant gave evidence on her own behalf. The respondent called the following witnesses to give evidence: Mark Gant and Steven Mumford.[4]Both parties made submissions.[5]The following initials are used by way of abbreviation in this judgment – Initials Name Job Title SN Samantha Nelson Team Manager (the claimant) MM Michael Moore Senior Team Manager (1st Line Manager) MG Mark Gant Appeal/ Grievance hearing manager SM Steven Mumford Senior Team Manager (2nd Line Manager SB Sara Bayley Head of BBFA
List of Issues
[6]It was agreed between the parties that the issues to be determined were as follows – 1. UNFAIR DISMISSAL 1.1 Fairness1.1.1 Was the reason for the Claimant's dismissal a diminished need for employees to do work of a particular kind or the cessation of work at a location?1.1.2 Did the Respondent carry out reasonable consultation with the Claimant about the redundancy?1.1.3 Was the selection process reasonable (in terms of the pool and the criteria applied to the pool)?1.1.4 Did the Respondent act reasonably in looking for alternative employment for the Claimant?1.1.5 Was dismissal within the range of reasonable responses open to the Respondent in the circumstances, including its size and administrative resources? [Per the amended claim: “her dismissal was both substantially and procedurally unfair for the following reasons: - The Respondent had no fair reason to dismiss; - There was no fair or proper consultation; - The process and decision to select the Claimant was unfair; - The Claimant was not provided with adequate information about the redundancy process in a timely manner; - The Claimant was not provided with adequate information about suitable alternatives; - The Respondent did not consider suitable alternative employment for the Claimant; - The decision to dismiss was pre-determined and a foregone conclusion; - The Respondent failed to consider their obligations to employees on maternity leave; - The process was tainted by discrimination; - It was not reasonable to dismiss in all the circumstances; and the dismissal fell out with the band of reasonable responses”]. 2. REMEDY 2.1 If the Claimant's claims are upheld:2.1.1 What remedy does the Claimant seek?2.1.2 If the Claimant seeks reinstatement or reengagement, is it practicable for the Respondent to comply with such an Order?2.1.3 What financial compensation is appropriate in all of the circumstances?2.1.4 Should any compensation awarded be reduced in terms of Polkey v AE Dayton Services Ltd [1987] ICR 142 and, if so, what reduction is appropriate?2.1.5 Should any compensation awarded be reduced on the grounds that the Claimant's actions caused or contributed to their dismissal and, if so, what reduction is appropriate? 2.1.7 Has the Claimant mitigated their loss? 2.1.7 What award for injury to feelings should be made? 2.1.8 What interest should be added to the award? 3. DISCRIMINATION – PREGNANCY 3.1 Discrimination due to maternity leave 3.1.1 Did the Respondent treat the Claimant unfavourably because she took, was on or sought to take maternity leave? The Claimant alleges the following occurred and constitutes unfavourable treatment:(a) The Claimant was not provided with the paperwork relating to the proposed redundancy until 16 May 2024;(b) The Claimant’s scoring matrix was done by reference to a period when she was first learning her role, and a period where she was undertaking alternative duties, placing her at a disadvantage compared to her colleagues;(c) Mr Moore denied the Claimant benefited from any additional protections as a result of her maternity;(d) Mr Moore failed to discuss suitable alternative employment with the Claimant;(e) Mr Moore failed to discuss additional support available for the Claimant as a result of her maternity leave;(f) Mr Moore dismissively responded to the Claimant’s message about her grievance with a ‘thumbs up’ emoji;(g) The Claimant was not provided with written notice of her redundancy and accompanying paperwork until two weeks after her redundancy had been confirmed verbally;(h) The Claimant was informed of the support meeting at extremely short notice, meaning she was unable to attend;(i) Mr Moore failed to provide the Claimant with a copy of the breakdown of her scoring, despite the Claimant requesting this be provided multiple times;(j) There was a significant delay in providing the Claimant a functioning laptop to allow her to search for suitable alternative roles;(k) The Respondent failed to provide the additional support promised in relation to seeking suitable alternative employment;(l) The Claimant was told two potentially suitable roles she highlighted to the Respondent were not suitable as they were secondment roles;(m) The Claimant’s grievance was not fully upheld;(n) The Claimant’s appeal against redundancy was not upheld;(o) On bringing a potentially suitable alternative role to the attention of Mr Mumford, the Claimant was dismissively informed the role was not suitable due to being a secondment; and(p) The Claimant was made redundant. 4. MATERNITY & PARENTAL LEAVE ETC. REGULATIONS 19994.1 Regulation 10 4.1.1 Was there a suitable alternative vacancy available? The Claimant alleges the following roles constituted a suitable alternative vacancy: (a) Team Manager Role identified between July 2024 and October 2024; (b) Team Manager Role identified on 2 October 2024; (c) Team Manager Role identified on 24 October 2024.4.2 Regulation 194.2.1 Did the Respondent subject the Claimant to any detriment? The Claimant alleges they were subject to the following which constitute detriments: [See unfavourable treatment/ detriment (a) to (p) above].4.2.2 If so, was any such act / failure to act by reason of: (a) The Claimant’s pregnancy; (b) The Claimant having given birth to a child; or (c) Her having taken, sought to take, or availed herself of the benefits of ordinary or additional maternity leave?4.3 Regulation 20(1)(a) 4.3.1 Was the reason or principal reason for the Claimant’s dismissal a reason connected with: (a) her pregnancy; (b) the fact she had given birth to a child; or (c) the fact that she took, sought to take, or availed herself of the benefits of ordinary or additional maternity leave?4.4 Regulation 20(1)(b)4.4.1 Was the reason, or principal reason, for the Claimant’s dismissal redundancy?4.4.2 If so, has Regulation 10 of the Maternity & Parental Leave etc. Regulations 1999 been complied with?4.5 Regulation 20(2)4.5.1 Was the reason, or principal reason, for the Claimant’s dismissal redundancy?4.5.2 If so, did the circumstances constituting redundancy apply equally to one or more employees in the same undertaking who held positions similar to that held by the Claimant, and who have not been dismissed?4.5.3 If so, was the reason, or principal reason, for which the Claimant was selected for redundancy a reason connected with: (a) Her pregnancy; (b) The fact she had given birth to a child; or (c) The fact that she took, sought to take, or availed herself of the benefits of ordinary or additional maternity leave. 5. SECTION 47C – EMPLOYMENT RIGHTS ACT 19965.1 Did the Respondent subject the Claimant to a detriment? The Claimant alleges the following occurred and constituted a detriment: [See unfavourable treatment/ detriment (a) to (p) above].5.2 If so, was any act / failure to act done for a reason which relates to pregnancy, childbirth or maternity, or ordinary, compulsory, or additional maternity leave? Findings in fact[7]The Tribunal makes the following findings in fact:[8]On 6 October 2011 SN commenced employment with HBOS working latterly as a Team Manager (a Grade D role) in the Respondent's Business Banking Financial Assistance (“BBFA”) team, based in Edinburgh. SN reported to MM as her line manager from December 2021 until August 2024 and then to SM.[9]Due to the impact of her pregnancy SN undertook alternative duties from February 2022 until the commencement of her first period of maternity leave. SN was absent on maternity leave from 23 May 2022 to 23 May 2023. She was then absent on holiday to end June 2023.[10]During that maternity leave SN informed HBOS she was pregnant again and it was agreed she would undertake alternative duties.[11]SN was absence on sick leave from 14 July 2023 (due to stress associated with a relative’s terminal diagnosis) until she commenced maternity leave on 20 November 2023. She was then absent on maternity leave until her employment terminated on 22 October 2024.[12]BBFA team was set up in 2021 to manage the peak in business banking customers with Bounce Back Loans falling into arrears once repayment holidays expired. The need for that service peaked in 2021/2022 and had reduced significantly by 2023 resulting in a proposal to half size of team in March 2024 (96 roles). The majority of the team worked in Telephony and it saw the largest number of reductions.[13]The redundancy policy provided in summary that they would consult with the recognised trade unions on planned restructuring, talk to staff individually about any impacts, focus on the skills and capabilities required when selecting, applying a fair and consistent process, and provide support to find an alternative role which reflects staff skills and experience with colleagues who are protected under law given priority for roles ahead of others including those on maternity leave.[14]Collective consultation with the union commenced in March 2024. The respondent prepared an Initial Union Consultation Proposal regarding the proposed reduction to BBFA Team. The Proposal detailed the selection criteria and set out a consultation and implementation timeline. It noted that the timeline as follows: Announcement Day on 7 May; colleagues input into their selection process concluding on 14 May; selection outcome advised on 10 June and commence support for at risk colleagues; notice served on colleagues on 8 July. It noted that: “there may be suitable temporary alternative roles to enable a longer period of employment. This will give colleagues more time to identify redeployment and/or develop skills to enhance opportunities for redeployment”. The respondent engaged in collective consultation with the recognised trade union from March for 45 days regarding its proposal to reduce the number of roles in the BBFA Team by 96 including the rationale for the proposal, the impact of the proposal on staff, the steps to be taking in mitigation, the timeline, and the selection criteria.[15]The managers were provided with detailed guidance on how to conduct the scoring fairly, objectively and without bias. All selection decisions were considered by the Senior Business Lead/ People Parter with a view to ensuring that the selection process had been fair. The guidance provided that: “if you have known the colleague for less than six months try to speak to their previous line manager for supporting evidence” . The guidance also provided as follows for scoring those absent on Maternity Leave: “• If they've been included in a selection process, these should be scored along with all other in scope individuals• It's important to recognise that they may have been absent from work for some time. So it's crucial that you’re familiar with their work, experience, and skills/capabilities (this includes anyone absent due to pregnancy); to ensure that these individuals are not disadvantaged by their absence• You may also need to consider whether someone has missed out on training/development opportunities as a result of their Maternity/Adoption or Shared Parental Leave. So, you should review whether that would impact their scores and if any allowance should be made for that• It's also recommended to contact the individual’s previous line manager for their input if you haven't managed them for over six months, but essential if you've only become their line manager since they started their Maternity/Adoption or Shared Parental Leave. If you're not their line manager, where possible contact their current line manager or previous line manager depending on circumstances• If scoring is taking place after the change has been announced, anyone on Maternity/Adoption or Shared Parental Leave (SPL) must have equal opportunity to provide input (if required)• As a scoring manager, you should also make sure that pregnant colleagues are not unduly disadvantaged or discriminated against during the scoring process i.e. their pregnancy should not be the reason for a negative impact upon their scoring. Any dismissal that could be linked to someone being pregnant (or on Maternity/Shared Parental leave) would automatically be legally defined as ‘unfair’. So fair scoring and robust rationales are crucial”[16]On 7 May 2024 MM advised staff that the business was undergoing a restructure which would result in staff being at risk of redundancy and they were provided with paperwork related to the redundancy.[17]On 7 May MM texted the claimant to advise that there has been a significant structure change within BBFA and asking to update her this afternoon. She said she was unable to speak. She ultimately had a 5 minute call with MM. He advised her that the business was undergoing a restructure which would result in staff being at risk of redundancy. She was informed that she would be placed in a pool and scored against other Team Managers. He asked her if she was returning to work after maternity leave. MM arranged for her to be paid a KIT day for 7 May. On 9 May he asked for her personal email address so that he could update her. He emailed SN copies of the documents issued to her colleagues on 7 May but she was unable to open the attachments because she did not have a PDF reader. On 16 May SN was provided with hard copies of that paperwork.[18]The Colleague Journey Personas advised colleagues that: “• The number of Grade D Team Manager roles are reducing• You will be in a selection process with your peers at the same grade for the remaining number of roles• There will be 2 selection pools, 1 for Birmingham and 1 for Scotland• You will be scored by your line manager against the capabilities required for the role”[19]It advised that: “• You will attend a 1:1 with your line manager. Please use this time, and at follow up 1:1s to ask any questions you may have• Over the next few days, you have an opportunity to provide evidence to your line manager that can, where relevant, be considered as part of the scoring process. This is optional and can be given verbally…• Roles are available on a hybrid basis, where the expectation is that you will work 2 days or 40% of your working week in a key site location” “• Your outcome will be confirmed to you on 17th June where you will be placed at risk of redundancy• You will start to look for redeployment opportunities, supported by your line manager and can access the support available from Right Management our outplacement provider• You can continue to look for redeployment even after formal notice of redundancy is served”[20]It advised colleagues on maternity leave: “• Roles within this change are remaining the same, there are just less of them and the expectation is that colleagues will perform these roles on a hybrid basis (40% in office) from the key sites of Birmingham, Edinburgh and Glasgow• You will therefore be assessed in a selection process alongside other impacted colleagues if you are based in one of the key sites …• In the event you are placed at risk of redundancy, you should be given preferential treatment for any available suitable alternative roles (roles similar to the one you do today) at that point”[21]Colleagues were able to provide any input into the selection process should they wish but no colleagues chose to do so.[22]On 22 May MM asked SN whether she would be able to travel to any of HBOS’s other offices. SN advised that she was unable to travel significantly for medical reasons.[23]SN was pooled with other Grade D BBFA colleagues in Scotland. There were 8 colleagues within this pool and 5 roles available. HBOS determined that it would potentially need to make 3 colleagues within this pool redundant. Scoring for the selection pool was undertaken by reference to the capabilities required for the role, namely: coaching excellence (25% weighting); drives results (25% weighting); ensures accountability (20% weighting); compliance (15% weighting); and customer service delivery (15% weighting). SN was scored by reference to her performance during the period that she was in a Team Manager role (from April 2021 to February 2022), and also during the period during when she was between maternity leaves and supporting the central BBFA function. The scoring matrix correctly referred to her having returned from maternity leave in May 2023 but did not note that she had been on holiday and only undertook 2 weeks of work before being off work on long term sick leave. The scorers took into account that she was learning the role when scoring her. Scoring was subject to calibration and sign-off by senior managers. SN received the lowest score of the 8 colleagues in her pool. She also scored lower than the other pool of Grade D BBFA managers. The weighted scores for the successful candidates was 81 to 97. The weighted scores for the unsuccessful candidates was 51 to 60. SN’s weighted score was 51. SN scored 2/5 in coaching excellence and ensures accountability; and 3/5 in the other categories. Detailed rationales were provided for the scores. The successful candidates scored predominantly 4/5 or 5/5 in each category. 24. 41 Grade D managers were at risk of redundancy across the business, 3 of whom were on maternity leave (including the claimant). The respondent reviewed their performance from when they were last in a Team Manger Role and overlayed input from any other roles. 2 out of the 3 colleagues scored very highly and were placed in Team Manager roles. The claimant scored the lowest and was placed at risk.[25]The outcome of the redundancy selection process was communicated to staff on or about 10 June. Staff received written confirmation of that discussion which the claimant did not receive until 26 June.[26]On 10 June SN was informed by MM that she had been selected for redundancy, she should look for alternative roles within the business and if she was unable to secure an alternative role her employment would be terminated. SN was shocked by her selection for redundancy because she believed that she should have been offered one of the team manager roles rather than scored alongside her colleagues. She expressed her surprise to MM and asserted that she had additional protections because she was absent on maternity leave. MM advised that she did not have additional protection and if she had HR would have told him. He offered a 1-2-1 meeting on 12 June to discuss matters further.[27]MM arranged for her to paid a KIT day for 10 May. He ordered her a laptop so that she would have access to the relevant support material. On 10 June she was sent written confirmation of her dismissal by reason of redundancy which she was unable to read until 26 June.[28]On 10 June SN raised a grievance relating to the way the redundancy process had been handled and the behaviour of MM. She advised that she wished to complain of an unfair dismissal and maternity discrimination; she should have been given priority over other colleagues who have secured roles; she had not been scored fairly because she had been scored against colleagues who have been working there for the last 2 years whereas she has not been in the business since April 2022; she can’t apply for jobs recruiting now because she won’t be returning from maternity leave until January.[29]On 10 June MM sent SN a whatsapp message saying he had requested a laptop for her (so she can apply for roles). She replied thanking him and letting him know she had raised a grievance. MM responded with a “thumbs up” emoji. He regularly acknowledged her messages in this way. SN felt this demonstrated a dismissive attitude towards her grievance.[30]On 10 June SN also raise an appeal. The basis of her appeal was the unfairness of the scoring matrix; the failure to provide her suitable alternative employment; she had been on leave for a considerable period due to her pregnancies and maternity leave periods, such that she had not been in the Team Manager role for which she was being assessed since February 2022. She was concerned that the time considered during her scoring was when she was first learning the role around three years ago, or during times when she was undertaking alternative duties. She was concerned that she had missed out on the development opportunities had by her colleagues.[31]On the morning of 12 June affected staff including SM were invited to a virtual team meeting to discuss support for those who had been selected for redundancy which was taking place later that day. She was unable to attend the meeting. The meeting was recorded and she could have accessed it. On 12 June SN asked MM to send her a copy of the scoring matrix which would show a breakdown of the scores.[32]Around mid/late June SN had an exchange of text messages with MM advising that he was happy to put the KIT days through for her, asking her to let him know when she gets her laptop so he can make sure she gets system access, advising her the Organisational Change Gateway will support her in finding alternative roles together with Right Management, and that he was happy to discuss matters with her on Wednesday. SN replied advising that she is discussing matters with the union and that she should automatically be appointed into a suitable alternative role.[33]The claimant was sent laptops by IT on or about 10 and 21 June. She experienced difficulty setting up those laptops and there was a delay in resolving that issue because she was not able to liaise with IT either immediately or for long periods (the claimant was attending to two young children and was absent on holiday from 12 to 20 June). She was provided with another laptop on 29 June which she was able to set up.[34]On 26 June the claimant was issued with written notice of redundancy. She was advised that her employment would end on 26 September 2024 subject to finding alternative employment. She was advised of her right of appeal, advised that her manager would support her in looking for another job, encouraged to explore internal job opportunities through Workday, and offered support from Right Management. She was advised that her contractual redundancy pay would be £42,621 (1 year’s salary).[35]On 27 June SM was invited to a redundancy appeal / grievance hearing. She was sent various documents by e-mail including the scoring matrix. SN did not notice the scoring matrix was attached to the e-mail until she was advised of this at the hearing.[36]MG was appointed to hear SN’s grievance and redundancy appeal. On 4 July SM attended the redundancy appeal / grievance hearing which was chaired by MG. SN was accompanied at that meeting. MG offered to adjourn the hearing to allow her an opportunity to review the scoring, reconvene the hearing or provide written representations. SN provided detailed written representations and confirmed that no reconvened hearing was necessary. She advised having concerns over the methodologies used to score her, the subjective nature by which she was scored, and the numerous factual inaccuracies set out in the comments accompanying the scores. She stated that she believed she was being discriminated against due to her pregnancy and maternity in the way the scoring matrix was carried out.[37]SB was MM’s line manager. On 30 July SN was informed by SB that her notice period would be extended by 4 weeks to allow her additional time to apply for new roles given the delay in being able to access a laptop; that Grade D roles across Edinburgh are still being actively explored by the business on her behalf; that there are no current Grade D Team Manager roles within Edinburgh; she was offered a Grade C role on a protected basis but she rejected this because she believed a telephony-based role would impact her mental health (she had previously been removed from telephony work); that she sought a full time home/office hybrid role based in Edinburgh, working a Monday to Friday - not weekend; if a role is a suitable alternative she will be automatically slotted into that role in view of her protected status; that her employment would terminate on 24 October 2024 if she was not successful in obtaining a new role. She was also informed that MM would no longer be her line manager and she would instead report to SM. On 1 August SN was sent a letter by SB outlining what had been discussed on the call. She was also advised that her contractual redundancy pay would increase to £46,173. because the extension would result in an additional whole year of service.[38]On 15 August SM received the outcome letters in respect of her redundancy appeal and grievance. MG had held investigation meetings with SN, MM, SB and Mike Wear and considered the paperwork provided.[39]The grievance was partially upheld by MG. He concluded that on 7 May 2024 she was given the same information as her peers and it was reasonable to provide that by personal email. There was then a delay (of 9 days) in posting that to her because he went on holiday and he should have passed this over to his line manager to deal with. There was also a delay in sending out written confirmation of her selection for redundancy in comparison to her peers because of issues arising from laptop access. Although communication by WhatsApp was informal MM should have responded more formally. She was sent laptops on 10, 21 and 29 June but was not able to liaise with IT immediately or for long periods. He considered that MM was making genuine attempts to resolve the situation. He noted that with a view to ensuring that she was not at any detriment, her at risk leave date had been extended by a further 4 weeks. He noted MM was happy to share the scores with her but his preferred approach was to having a working laptop with a view to talking through the scores with her. MG concluded that whilst there was a delay in her receiving the scores, they were not intentionally withheld (MM wanted to talk them through rather than provide them in isolation), nor was there a detrimental impact, because she proceeded to appeal the decision and she received and commented on the scores as part of the appeal process. He concluded that the purpose of the call on 10 May was to advise her of the outcome and MM offered a follow-up call to provide support. He found that this call was a difficult and challenging call because she had been told she was unsuccessful at securing a role and she strongly believed that she had been treated unfairly because she believed that she should not have been included in the scoring. He found that MM gave her notice of the call on 12 June as soon as he was aware. He did not find that she had been discriminated against.[40]The redundancy appeal was not upheld by MG. He established there was clear guidance provided to Scoring Managers in the form of a Scoring Manager Support Guide which included how to score colleagues on Maternity / Adoption or Shared Parental Leave and this was reviewed and followed. MM and SB advised that when compared to her peers during her time as a Team Manager, SN was struggling and faced challenges, which saw other colleagues achieve higher scores. Having reviewed the scoring matrix MG was comfortable that the commentary clearly indicated detailed rationales for each colleague. Such a level of detail demonstrated to him that each colleagues’ individual circumstances and skillsets were thoroughly reviewed, considered and appropriately scored, which ensured a fair assessment was undertaken. MG stated: “Ultimately, I find that your Business Unit followed the laid down process, your scores were a reflection of the time you were in the business, a number of colleagues input into your scoring, the commentary for all colleagues indicated a thorough review had been undertaken, and there were checks and measures in place, including “wash up” and “grandparenting” to ensure the correct process was followed”. Further and taking into account her meetings with MM and SB and the 4 week extension to her notice period, “I am satisfied that your Business Unit are taking all reasonable steps to fulfil their obligations and are truly committed to supporting you into a suitable alternative role if one becomes available”.[41]On 15 August SM contacted SN to inform her that he would be her line manager going forward. On 20 August SM and SN had a meeting to discuss vacancies. During that call SM asked for her CV so that they could look for suitable alternative roles. He asked her to look on Workday to identify any roles. She sought to reduce her hours to part time. They agreed to discuss matters every week and to review the Grade D or C roles in Edinburgh. She was permitted to use KIT days for those catch-ups. If any roles identified are deemed suitable she has protected status. If not and she is still interested she could make an application which he would support. She identified a Grade D role in economic crime prevention which he would consider.[42]On 28 August SM and SN were scheduled to meet to discuss vacancies but SN had to reschedule due to her child being unwell.[43]On 4 September SB and SN had a meeting to discuss vacancies. SN advised that she was unable to find her CV. SB advised that they provide support with writing a new one.SB reminded SN of the importance of checking Workday regularly. SB mentioned a Grade C Team Manager role currently advertised but SN didn't feel the shift patterns would work with her child care arrangements. SB explained that the economic crime prevention role is quite technical and closed for applications but they will discuss further with HR. HR advised that the role was not a suitable alternative because she did not have the relevant technical knowledge required for the role and having considered matters with the hiring manager she would not have made the sift to interview.[44]On 12 September SM and SN were scheduled to meet to discuss vacancies which SN did not attend. He stayed on the call for 10 minutes hoping she would join. He emailed SM asking what time and day suits her best.[45]On 19 September SM and SN were scheduled to meet to discuss vacancies which SN did not attend.[46]On 26 September SM and SN were scheduled to meet to discuss vacancies which SN did not attend. He stayed on the call for 10 minutes hoping she would join. He emailed SM asking what time and day suits her best.[47]On 2 October SN emailed SM advising that she has seen Team Manager roles advertised and she will join the call tomorrow.[48]On 3 October SM and SN had a meeting to discuss vacancies. SN advised that she has seen two Team Managers roles advertised that she was interested in. Both were 12 month secondments (understood to be maternity cover) with closing dates of 4 and 7 October and due to start imminently. SN advised that she intended to return to work from maternity leave in January.[49]On 4 October SM contacted HR who advised that only permanent roles are classed suitable alternative employment and not temporary secondments because they do not provide the same level of job security. She suggested that SN apply asap and select that she is “At Risk” (with a view to being given preferential treatment).[50]On 4 October SM confirmed to SN that one of the team manager roles was a secondment to cover maternity leave commencing in November 2024 and she would need to submit an application. The claimant did not apply for this role.[51]On 7 October SN emailed SM to ask whether a Grade E role would be classed as suitable alternative. SM advised that it would not because it was a promotion and she would need to apply through the normal process. The claimant did not apply for this role.[52]On 10 October SM and SN had a meeting to discuss vacancies.[53]She was paid a KIT day for 15 October.[54]On 16 October SM advised SN that a secondment is not deemed suitable because it does not provide the same level of job security i.e. is not permanent.[55]On 17 October SM and SN had a meeting to discuss vacancies. SN explained that when she was placed at risk in 2020/2021 Mike Wear moved her into what she believed was a seconded role for a few months before being placed into a BBFA role.[56]On 22 October SM advised SN that secondments start imminently and not in a few months time and Mike Wear was previously able to place her on secondment because she was not absent from work on maternity leave. She had advised not being able to start back until January.[57]On 24 October SM and SN had a meeting to discuss vacancies. SN Spoke to SM about a team manager role which she had seen advertised. SM confirmed the claimant that the role was a secondment and that HBOS did not consider secondments as suitable alternative employment. SN did not submit an application.[58]On 24 October 2024 the claimant’s employment was terminated. She received enhanced redundancy pay of £48,707.28 net (over 1 year’s salary).[59]As at the termination date she was paid £819.63 a week (gross), £608.17 (net) and received an employer pension contribution of £73.77 (9%).[60]Between March and June 2025 SN applied for various roles with Midlothian and Edinburgh City Councils. On 9 September 2025 SN started work with the Crown Office earning £500.07 a week. Observations on the evidence[61]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur. Facts may be proven by direct evidence (primary facts) or by reasonable inference drawn from primary facts (secondary facts).[62]All of the witnesses gave their evidence in a measured manner which was largely consistent with the documentary evidence and there was on the whole no reasonable basis upon which to doubt the credibility and reliability of their testimony.[63]We did not hear evidence from MM under explanation that he was no longer employed by the respondent. We were therefore reliant upon the claimant’s recollection in evidence and the contemporaneous documentary evidence including notes of the interview that MG held with MM during his investigation. MM had been provided with a script for the meetings on 7 May and 10 June and we considered it more likely than not he conveyed the content of that script in those meetings and this is reflected in MG’s interview notes.[64]It was apparent from prior exchange of whatsapp messages with the claimant that MM regularly acknowledged her messages using a “thumbs up” emoji.[65]In August 2024 the respondent advertised a Grade D role in economic crime prevention and the claimant expressed an interest in that role. The respondent considered that the role was not suitable because it was a technical role and she did not have the relevant technical knowledge. The claimant did not challenge that assessment either at the time or in evidence. It was therefore considered likely that it was a technical role and the claimant did not have the relevant technical knowledge for the role.[66]The claimant was very upset by what she saw as the respondent’s failure to simply confirm her in post and by her low score which put her at risk of redundancy and this is reflected in her grievance and appeal in June 2024 which reference complaints for unfair dismissal and maternity discrimination. There was by contrast little evidence that the claimant was upset by the subsequent detriments that were said to arise after she was put at risk in June and in particular after the change in line management in July. She did not apply for any role in the period from June to October 2024 despite her assertion that there was suitable alternative employment. Whilst fully recognising that she was caring for two young children who were at times unwell, she was given a number of paid KIT days as part of the redundancy process, she had access to a working laptop from 30 June and she found time in June, July and August 2024 to correspond in detail regarding her appeal and grievance. We were accordingly left with the impression that she was not actively seeking redeployment with the respondent. The law Discrimination at work under Equality Act 2010 (‘EA 2010’)
The law
[67]Under section 30 EA 2010 an employer must not discriminate against an employee as to their terms, etc, by dismissal or by subjecting them to any other detriment.[68]A detriment is construed widely and arises where a reasonable worker might take the view that they had been disadvantaged by the acts complained of. Pregnancy and maternity discrimination[69]Section 18 EA 2010 provides that a person discriminates against a women if they treat her unfavourably -a. because of her pregnancy in or after the protected period;b. she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.[70]The protected period begins with the pregnancy and ends at the end of the additional maternity leave period or when she returns to work, if earlier. Unfavourable treatment[71]Unfavourable treatment indicates being put to a disadvantage. There is no requirement for a comparator. Para 8.22 of the EHRC Code of Practice of Employment (2011) gives as an example “failure to consult a woman on maternity leave about changes to her work or about possible redundancy.” The reason why[72]This requires consideration the reason for that treatment. It is not sufficient for a claimant to show she was put to a disadvantage whilst on maternity leave. She must prove facts from which it can reasonably be concluded that her maternity leave was the reason why she was treated unfavourably.[73]The reason for the treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the treatment to amount to an effective cause of it. In “reason why” cases the issue is whether the protected characteristic operated (consciously or subconsciously) on the alleged discriminator’s state of mind. In “criterion cases” where the treatment complained of is caused by the application of a criterion which is inherently or indissociably discriminatory there is no need to consider the alleged discriminator’s state of mind (R (E) v Governing Body of JFS [2010] 2AC 728, SC).[74]In reason why cases discrimination may be intentional or it may be subconscious (based upon stereotypical assumptions). The tribunal must consider the conscious or subconscious mental processes which caused the employer to act. This is not necessarily a question of motive or purpose or whether ‘but for’ the maternity leave the treatment would not have occurred. Burden of proof[75]Section 136(2) EA 2010 provides that “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravenes 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 provisions”.[76]The burden of proof provisions apply where the facts relevant to determining discrimination are in doubt. The burden of proof provisions are not relevant where the facts are not disputed or the tribunal is in a position to make positive findings on the evidence (Hewage v Grampian Health Board [2012] UKSC 37, SC).[77]The burden of proof is considered in two stages. If the claimant does not satisfy the burden of Stage 1 their claim will fail. If the respondent does not satisfy the burden of Stage 2, if required, the claim will succeed (Igen v Wong [2005] ICR 935). Stage 1 – prima facie case[78]It is for the claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has treated the claimant less favourably because of a protected characteristic (‘Stage 1’ prima facie case).[79]Having a protected characteristic and there being a difference in treatment is not sufficient (Madarassy v Nomura International Plc [2007] ICR 867). The claimant must also prove a Stage 1 prima facie case regarding the reason for difference in treatment by way of “something more”.[80]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan v London Regional Transport [1999] 4 All ER 65). Evidence of the reason for the treatment will ordinarily be by reasonable inference from primary facts.[81]At Stage 1 proof is of a prima facie case and requires relevant facts from which the tribunal could infer the reason. Relevant facts in appropriate cases may include evasive or equivocal replies to questions or requests for information; failure to comply with a relevant code of practice; the context in which the treatment has occurred including statistical data; the reason for the treatment (Madarassy). “In so far as this [information] was in the hands of the employer, the claimant could have identified the information required and requested that it be provided voluntarily or, if that was refused, by obtaining an order from the Tribunal” (Efobi v Royal Mail Group [2019] EWCA Civ 19, CA).[82]Assessment of Stage 1 is based upon all the evidence adduced by both the claimant and the respondent but excluding the absence of an adequate (i.e. non-discriminatory) explanation for the treatment (which is relevant only to Stage 2) (Madarassy). All relevant facts should be considered but not the respondent’s explanation, or the absence of any such explanation (Laing v Manchester City Council [2006] ICR 1519, EAT and Efobi). (The respondent’s explanation for its conduct provides the reason why he has done what could be considered a discriminatory act.) “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts” (Madarassy). “In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts” (Igen; Hewage). Stage 2 – rebutting inference[83]If the claimant satisfies Stage 1, it is then for the respondent to prove that the respondent has not treated the claimant less favourably because of a protected characteristic (Stage 2).[84]The employer must seek to rebut the inference of discrimination by explaining why he has acted as he has (Laing). The treatment must be “in no sense whatsoever” because of the protected characteristic (Barton v Investec 2003 IRC 1205 EAT). The explanation must be sufficiently adequate and cogent to discharge the burden and this will depend on the strength of the Stage 1 prima facie case (Network Rail Infrastructure Limited v Griffiths Henry 2006 IRLR 865).[85]The Tribunal may elect to bypass Stage 1 and proceed straight to Stage 2, if they are satisfied that the reason for the less favourable treatment is fully adequate and cogent (Laing). Remedy for discrimination[86]If the tribunal finds that there has been a contravention of Part 5 the tribunal may make a declaration, order the respondent to pay compensation and make an appropriate recommendation (Section 124 EA). Detriment Section 47C ERA/ Regulation MPL (Employment Rights Act 1996 (‘ERA’) and Maternity and Parental Leave etc Regulations 1999 (‘MPL’))[87]Section 47C ERA together with Regulation 19 MPL provides an employee with the right not be subjected to any detriment (excluding dismissal) by an act, or deliberate failure to act, done for a prescribed reason namely that that the employee is pregnant, given birth, took maternity leave, etc. Causation[88]“Subjected to” is intended “Linguistically – to convey a sense of causation capable of operating both in respect of a (positive) act, and a (negative) failure to act” (Abertawe Bro Morgannwg University Health Board v Ferguson 2013 UKEAT/0044/13/LA). Remedy for detriment[89]An employee who is found to have been subjected to a detriment is entitled to a declaration and may be entitled to an award of compensation the amount of which is just and equitable in all the circumstances (Section 49 ERA). Automatically unfair dismissal S99 ERA; Reg 20 MPL[90]Under Reg 20 MPL a woman is regarded as unfairly dismissed if the reason or principal reason for her dismissal is:a. connected with her pregnancy or maternity leave, etc (Reg 20(3).b. redundancy and Reg 10 has not been complied with.c. redundancy and her selection was connected with connected with her pregnancy or maternity leave, etc (Reg 20 (2)).[91]A dismissal by reason of redundancy has the meaning set out in section 139 of the ERA and includes the fact that the requirements of the business for employees to carry out work of a particular kind in the place where the employee was employed have ceased or diminished.[92]Reg 10 provides that where, during an employee’s maternity leave it is not practicable by reason of redundancy to continue to employ her under her existing contract the employee is entitled to be offered a suitable alternative vacancy.[93]The work to be done must be suitable and appropriate (reg 10(3)(a)) and the capacity, place of work, and other terms and conditions must be not substantially less favourable (reg 10(3)(b)) (Simpson v Endsleigh Insurance Services Ltd 2011 ICR 75, EAT). It is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable.[94]EHRC and ACAS good practice guidance “Managing Redundancy for Pregnant Employees or those on Maternity Leave, July 2012” provides: “To decide if a job is suitable and appropriate the law says it must be no worse than her previous job with regard to location, terms, conditions and status and she has the capacity for the work”.[95]Where a redundancy situation entails a reduction in a number of existing posts this does not of itself create vacancies (Carnival plc v Hunter 2024 EAT 167) and Reg 10 accordingly affords no protection against selection from a pool. However where existing posts are removed and new posts are created, those new posts are vacant and Regulation 10 affords priority to women on maternity leave (Sefton Borough Council v Wainwright 2015 ICR 652, EAT). Burden of proof[96]Where an employee has qualifying service the employer has the burden of providing the reason for dismissal. This may be established on balance of probabilities by reasonable inference from primary fact. Causation[97]The reason for dismissal must be “for a reason connected with” her maternity leave, etc. This requires a “causal connection” and not merely an association (Atkins v Coyle Personnel plc UKEAT/0206/07/DA, EAT). Unfair dismissal Section 98 ERA12.Section 94 of Employment Rights Act 1996 (‘ERA 1996’) provides the claimant with the right not be unfairly dismissed by the respondent.13. It is for the respondent to prove the reason for the claimant’s dismissal and that the reason is a potentially fair reason in terms of Section 98 ERA 1996. At this first stage of enquiry the respondent does not have to prove that the reason did justify the dismissal merely that it was capable of doing so.14. If the reason for her dismissal is potentially fair, the Tribunal must determine in accordance with equity and the substantial merits of the case whether the dismissal is fair or unfair under Section 98(4) ERA 1996. This depends whether in the circumstances (including the size and administrative resources of the respondent’s undertaking) the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant. At this second stage of enquiry the onus of proof is neutral.15. In determining whether the respondent acted reasonably or unreasonably the Tribunal must not substitute its own view as to what it would have done in the circumstances (Foley v Post Office; Midland Bank plc v Madden [2000] IRLR 827). Instead the Tribunal must determine the range of reasonable responses open to an employer acting reasonably in those circumstances and determine whether the respondent’s response fell within that range. The respondent’s response can only be considered unreasonable if the decision to dismiss fell out with that range. The range of reasonable responses test applies both to the procedure adopted by the respondent and the fairness of their decision to dismiss (Iceland Frozen Foods Ltd v Jones [1983] ICR 17 (EAT)).16. The Tribunal should consider whether any procedural irregularities affected the overall fairness of the whole process in the circumstances having regard to the reason for dismissal. It is irrelevant that the procedural steps would have made no difference to the outcome except where they would have been utterly useless or futile (Polkey v AE Dayton Services Ltd 1988 ICR 142, HL).17. The EAT in Williams and ors v Compare Maxam Ltd 1982 ICR 156 suggested that a reasonable employer will: seek to give warning of the risk of redundancy; consult about alternative solutions and fair selection; fairly identify and apply selection criteria; and will consider alternative employment.18. Where an employer departs from an agreed procedure this will be a relevant factor in considering whether the dismissal was fair.19. Many selection criteria involve a degree of personal judgment and subjectivity. “If a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis” (British Aerospace plc v Green and ors 1995 ICR 1006, Court of Appeal). Instead the issue is whether the system was in general terms inherently fair or unfair and whether there were any overt signs of unfairness in its application. “The tribunal is not entitled to embark upon a reassessment exercise... it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based” (British Aerospace).20. The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to redundancy dismissals. Remedy for unfair dismissal21. Compensation is made up of a basic award and a compensatory award. A basic award, based on age, length of service and gross weekly wage, can be reduced in certain circumstances.22. Section 123 (1) of ERA provides that the compensatory award is such amount as the Tribunal considers just and equitable having regard to the loss sustained by the claimant in consequence of dismissal in so far as that loss is attributable to action taken by the employer.23. An employer may be found to have acted unreasonably under Section 98(4) of ERA on account of an unfair procedure alone. If the dismissal is found to be unfair on procedural grounds, any award of compensation may be reduced by an appropriate percentage if the Tribunal considers there was a chance that had a fair procedure been followed that a fair dismissal would still have occurred (Polkey v AE Dayton Services Ltd [1987] IRLR 503 (HL)). In this event, the Tribunal requires to assess the percentage chance or risk of the claimant being dismissed in any event, and this approach can involve the Tribunal in a degree of speculation. Submissions[98]The claimant’s submissions were in summary as follows:a. Her maternity leave need not be the main reason for the unfavourable treatment provided it is an effective cause (O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor 1997 ICR 33, EAT)b. The burden of proof is upon the claimant to show facts from which it could be infer discrimination. Evidence from all sources should be considered (Ayodele v CityLink Ltd and anor 2018 ICR 748, CA),c. The entitlement under Regulation 10 is not subject to a test of reasonableness (Sefton Borough Council v Mrs M Wainwright Appeal No. UKEAT/0168/14/LA). Having a start date of November did not prevent it from being a suitable vacancy at the time she was at risk of redundancy.d. The claimant was a credible witness with good recall. Her evidence was clear and not embellished and should be preferred to the respondent witnesses where there is a dispute.e. The respondent is a large well resourced company and it was surprising it was so poorly handled. Her grievance and appeal was tainted by discrimination.f. On the call of 7 May MM had asked the claimant if she was planning to return to work following her maternity leave. That was instructive. MM delayed in providing sufficient information. He had a dismissive manner – she was out of sight and out of mind. This made it harder for her to properly engage with the process. There was no opportunity to input into her scoring. There was no further discussion until 10 June.g. Her scoring was based upon her old role and did not reflect her overall performance in the business over 14 years – previous managers could have input from prior roles.h. In the call of 10 June MM was vague and offered no support. He was entirely dismissive of the protections she had and did not believe her. It reflects the dismissive and uncaring attitude of the respondent.i. The claimant had less than 3 hours’ notice of the call on 12 June. MM failed to arrange a proper handover with a colleague.j. Using a thumbs up emoji to respond to her grievance was insulting, inappropriate and uncaring.k. Inferences can be drawn from his conduct as a whole. He regarded her as a nuisance and an afterthought.l. The grievance process was beset with delays and communication issues. MG accepted that the scoring was withheld from her but failed to uphold her grievance. She was left feeling unheard and ignored.m. Having partially upheld her grievance that there were unacceptable delays and MM’s response was inappropriate, MG should have gone on to uphold her appealn. The respondent is a large and well resourced employer. It had policies which were ignored.o. There was delay in providing the paperwork, no individual consultation and no opportunity to input into the scoring – these were significant procedural failings.p. The claimant identified but was not offered suitable alternative employment. Both the claimant and SM considered that the seconded roles were suitable. The respondent had a policy which stated this and the claimant had been given a seconded role when she was previously at risk of redundancy. Remedyq. The claimant has lost her career and this deeply upset the claimant.r. She did not apply for any of the alternative employment because she was being discriminated against and in any event the closing dates were on the same day or a couple of days later.s. So long as the tribunal does not lose sight of the fact that it is compensating a claimant for the injury actually suffered, the manner of the discrimination can be a useful guide to inferring the injury suffered (Eddie Stobart Limited v Caitlin Graham EA-2023-SCO- 000073-JP)t. Reasonable to award £10k award for injury to feelings where a short serving employment is subjected to a discriminatory redundancy dismissal (Touati Root Success Ltd (London South) (Case No 2318259/2010) (18 January 2011, unreported))
Remedy
[99]The respondent’s submissions were in summary as follows: Pregnancy and maternity discriminationa. Each act relied upon requires to put the claimant to a disadvantage and be because of maternity leave. The fact that a claimant's maternity leave is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment (para 67 Gould v St John’s Downshire [2020] UKEAT/0002/20/BA citing Amnesty v Ahmed (2009)).b. The 9 days delay in the claimant accessing the paperwork did not put her to a disadvantage. The reason for the delay was that she could not open a PDF and then MM was on holiday. Her maternity leave was part of the circumstances but not the reason why.c. Scoring her for the period she was working (as Team Manager and in an alternative role) did not put her to a disadvantage. Her low score was caused by her poor performance. Her maternity leave was part of the circumstances but not the reason why.d. The claimant believed she should not have been selected because she was on maternity leave. MM’s denial of this did not put her to a disadvantage because her belief was erroneous. He denied this because it was untrue not because she was on maternity leave.e. Suitable alternative employment and additional support was discussed from July and there was no disadvantage. There was no detailed discussion regarding this on 10 June because the claimant believed she should not have been selected in the first place.f. The thumbs up emoji caused negligible disadvantage if any. It was his usual means of acknowledgment and there was no evidence that this response was because of her maternity leave.g. The delay in confirm her redundancy did not prevent her appealing and did not put her to a disadvantage. The delay occurred because of an inoperable laptop and not because of her maternity leave.h. The claimant was unable to attend a team meeting on 12 June but could have accessed a recording of it. The cause of the short notice was because MM only received notice that day and not her maternity leave.i. The delay in providing the scoring was ameliorated by the hearing adjournment. The delay was caused by an inoperable laptop ad not her maternity leave.j. The reason for the delay in providing a functional laptop was not her maternity leave. In any event she was given an additional 4 weeks to find suitable alternative roles.k. She was told seconded roles were not suitable because they lacked equivalent job security and not because of her maternity leave. She was not told this dismissively. The claimant could have applied but elected not to do so.l. The grievance was not fully upheld but there was no evidence that this was because of her maternity leave. Likewise her redundancy appeal.m. She was made redundant because she did not score sufficiently highly and not suitable alternative employment. There was no evidence she was made redundant because she was on maternity leave. Regulation 10 MPLn. The team manager roles identified by the claimant were all seconded roles and accordingly the terms and conditions were substantially less favourable than her existing contract.o. There was a diminished requirement work for team managers in the BBFA team in Scotlandp. There is no requirement of general workforce consultation (Haycocks v ADP RPO UK Limited [2024] EWCA Civ 1291) and at para.40 cited with approval the EAT’s brief summary of relevant authorities; i. “The employer will normally warn and consult either the employees affected or their representative; Polkey v A.E. Dayton Services Ltd [1988] AC 344. ii. A fair consultation occurs when proposals are at a formative stage and where adequate information and adequate time in which to respond is given along with conscientious consideration being given to the response; R v British Coal Corporation ex p Price [1994] IRLR 72. iii. Whether in collective or individual consultation, the purpose is to avoid dismissal or ameliorate the impact; Freud v Bentalls Ltd [1983 ICR 77. iv. A redundancy process must be viewed as a whole and an appeal may correct an earlier failing making the process as a whole reasonable; Lloyd v Taylor Woodrow Construction [1999] IRLR 782. v. The ET’s consideration should be of the whole process, also considering the reason for dismissal, in deciding whether it is reasonable to dismiss; Taylor v OCS Group Ltd [2006] ICR 1602. vi. It is a question of fact and degree as to whether consultation is adequate and it is not automatically unfair that there is a lack of consultation in a particular respect; Mugford v Midland Bank plc [1997] ICR 399. vii. Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process; Camelot Group plc v Hogg UKEATS/0019/10. viii. The use of a scoring system does not make a process fair automatically; British Aerospace plc v Green [1995] ICR 1006. ix. The relevance or otherwise of individual scores will relate to the specific complaints raised in the case; British Aerospace v Green.”q. Consultation with the union took began on 26 March 2024 regarding the proposal and the process including the timeline, the selection criteria, the scoring matrix, etc.r. There was consultation with the claimant in the period from June to October regarding her selection and alternative employment.s. There was no real criticism of the pool or of the criteria but she was critical of a shorter period. The scoring was checked by various others and was fair. In any event there was no basis upon which to assert that she could have scored sufficiently highly to avoid selection.t. The claimant had access to vacancies and could have applied but didn’t. There was no vacancy which matched her criteria. Her notice period was extended by 4 weeks to give her additional time to look for alternative roles.u. The dismissal was by reason for redundancy and was within the range of reasonable responses. It was not for a reason connected with maternity leave. Remedyv. The enhanced redundancy payment less her statutory redundancy entitlement was £40k and accordingly the claimant suffered no loss of earnings for 59 weeks. Discussion and decision Discrimination due to maternity leave Did the Respondent treat the Claimant unfavourably because of maternity leave? (Section 18 EA 2010) Did the Respondent subject the claimant to any detriment by reason of pregnancy, childbirth, maternity leave? (Section 47C ERA and Regulation 19 MPL)[100]The claimant alleged 16 acts of discrimination due to maternity leave which are considered in turn: a. Delayed providing paperwork[101]In March 2024 the respondent commenced collective consultation with the union about a proposal to reduce the BBFA Team. On or about 7 May BBFA staff including the claimant were advised of that redundancy situation. On 9 May 2024 the claimant’s line manager MM provided her by email copies of the paperwork detailing the redundancy process. She was unable to open the attachment and she was not provided with hardcopies until 1 week later. She therefore saw the paperwork 9 days later than her colleagues. Contrary to the respondent’s submission the claimant was put to a disadvantage because she had less time to input to the selection process than her colleagues. There was however no reasonable basis upon which it could be inferred that the reason for the delay in providing her with the paperwork was pregnancy, childbirth, or maternity leave (‘maternity leave, etc’). There was a sufficiently adequate and cogent explanation that the reason for the delay was that she did not have a pdf reader and then MM was on holiday. b. Redundancy Scoring period[102]The claimant was pooled with the other Grade D BBFA Team Mangers in Scotland. There were 8 colleagues and 5 roles available. The scoring period was predominantly 2023/2024 when the claimant was absent on two periods of maternity leave from May 2022 and November 2023. The claimant’s scoring period was extended back to April 2021 to April 2022, when she was working as a Team Manager and the very brief period arising in May 2023 between her periods of maternity leave, when she was undertaking alternative duties. The claimant received the lowest score. Contrary to the respondent’s submission the claimant was put to a disadvantage because she had less time to gain experience in the role than other colleagues who had not been absent on maternity leave. There was however no reasonable basis upon which it could be inferred that the reason for giving her the lowest score was her maternity leave, etc. There was a sufficiently adequate and cogent explanation that the reason for her score was their reasoned assessment of her performance. c. Denied that she benefited from additional protections[103]On 10 June 2024 MM called the claimant to advise her that she had been selected for redundancy, she should look for alternative roles within the business and if she was unable to secure an alternative role, her employment would terminate. The claimant insisted that she should have been offered one of the team manager roles rather than scored alongside her colleagues because she had additional protections whilst absent on maternity leave. MM denied this. He did not deny this because she was on maternity leave, he denied this was because he believed (correctly) that she was wrong. The claimant was not put to any disadvantage by MM’s denial. d. Failed to discuss alternative employment e. Failed to discuss additional support[104]On the 10 June call MM did not discuss with the claimant alternative employment and additional support. There was no reasonable basis upon which it could be inferred that the reason he did not do was because she was on maternity leave, etc. There was a sufficiently adequate and cogent explanation that the focus of the call was the claimant’s understanding that she ought to have been offer a team manager role and not scored at all. f. Dismissively responded to her grievance[105]After the telephone call on 10 June MM sent the claimant a whatsapp message saying he had requested a laptop for her. She replied thanking him and letting him know she had raised a grievance. MM responded with a “thumbs up” emoji. MM regularly replied to messages using a thumbs up emoji. There was no reasonable basis upon which to infer that he replied in this way because she was on maternity leave, etc. g. Delayed providing written notice and paperwork[106]On 10 June 2024 MM sent the claimant an email confirming her selection for redundancy. She did not see that email until 26 June because she was unable to set up the 2 laptops that were sent to her by IT. Other colleagues saw that email the same day. The claimant was not put to a disadvantage by that delay because she was already aware of her right of appeal and the need to find alternative employment. In any event there was a sufficiently adequate and cogent explanation the reason for the delay was that she was unable to set up the laptops and not because of her maternity leave, etc. h. Short notice of support meeting[107]On 12 June 2024 MM gave staff, including the claimant, 2 hours’ notice of a virtual team meeting to discuss support for those who had been selected for redundancy which she was unable to attend. There was no disadvantage to the claimant because the meeting was recorded. There was no reasonable basis upon which it could be inferred that the reason for the short notice was her maternity leave, etc. In any event there was a sufficiently adequate and cogent explanation that the reason for the short notice was because MM had been absent on holiday. i. Failed to provide her scoring breakdown[108]On 12 June the claimant asked MM to provide a breakdown of her scores. She was provided that on 27 June by another manager (but did not realise that until the appeal hearing on 4 July). The claimant was not put to a disadvantage because she was given additional time to consider that information. In any event there was no reasonable basis upon which it could be inferred that the reason MM did not provide that scoring was her maternity leave. In any event there was a sufficiently adequate explanation provided by MM during the investigation which was that he wanted to talk them through rather than provide them in isolation. j. Delay in providing a functioning laptop[109]There was a delay in providing the claimant with a functioning laptop to allow her to search for alternative roles in the period 12 and 30 June 2025. A laptop had been procured by MM on 10 June. IT provided the claimant with laptops on 10 and 21 June which she was not able to set up. The delay in providing her with a functioning laptop did not put her to a disadvantage because her notice period was extended by 4 weeks. There was no reasonable basis upon which it could be inferred that IT delayed in providing her with a functioning laptop because of her maternity leave, etc. In any event part of the reason for the delay was that the claimant had been absent on holiday from 12 to 20 June. k. Failure to provide additional support[110]On 26 June 2024 the claimant was sent written notice advising that her employment would terminate on 26 September by reason of redundancy subject to finding alternative employment. She was advised her manager would continue to help her look for another role. On 30 July she was advised by SB that her notice period would be extended by 4 weeks to 24 October (and her redundancy pay increased accordingly) and that her line manger would change to SM. SB and SM arranged to hold weekly meetings with the claimant over a 3 month period to support her in finding alternative employment. They arranged for those to be paid as KIT days. She was advised that if any role was suitable she would have protected status otherwise she could make an application which would be supported. They offered her support in writing a new CV so that alternative roles could be identified. They noted her requirements regarding hours, location and no telephony. They looked for Grade D or C roles in Edinburgh. She was advised that there were no Grade D Team Manager roles but she was offered a Grade C role on a pay protected basis. There was no reasonable basis upon which it could be inferred that they failed to provide additional support or did so because of her maternity leave, etc. l. Told seconded roles were unsuitable m. Told this dismissively[111]On 3 October the claimant expressed interest in two Team Manager roles. Both were 12 month secondments with closing dates of 4 and 7 October and due to start imminently. The claimant advised that she was not due back from maternity leave until January 2025. On advice from HR, SM advised her that seconded roles were not deemed suitable because they were not permanent (and did not provide the same level of job security) and because they were due to start imminently (and she was not available until January). She was in any event advised to apply asap and select that she was “at risk”. Contrary to the claimant’s assertion, she was given an adequate and cogent explanation as to why the role was considered unsuitable and she was not told this dismissively. There was no reasonable basis upon which it could be inferred that she was told this because of her maternity leave, etc. n. Grievance was not fully upheld o. Appeal against redundancy not upheld[112]In June 2024 the claimant submitted a grievance alleging discrimination and unfair dismissal on the basis that she wasn’t given priority over other colleagues and she can’t apply for jobs now because she won’t be returning until January. She also submitted an appeal against redundancy selection on the basis that the scoring was unfair because she had not been in the Team Manager role since February 2023 and she had not been given suitable alternative employment. MG was appointed to hear her grievance and appeal. He conducted a detailed investigation. He provided her with a detailed and cogent rationale of the outcomes. There was no reasonable basis upon which it could be inferred that the grievance was not fully upheld and her appeal was not upheld because of her maternity leave, etc. p. Made redundant[113]Having regard to the facts noted in summary below there was no reasonable basis upon which it could be inferred that she was made redundant because of her maternity leave, etc. Reason for the claimant’s dismissal Was the reason or principal reason for her dismissal connected with maternity leave, etc? (Reg 20 MAPLE) Was the reason or principal reason for her dismissal redundancy? If the circumstances constituting the redundancy applied equally to other employee(s), was the reason for her selection connected with maternity leave, etc?[114]The respondent was halving the size of the BBFA Team. The claimant was pooled with the other Grade D BBFA Team Mangers in Scotland. There were 8 colleagues and 5 roles available. There was a sufficiently adequate and cogent explanation that she was put at risk of redundancy because she received the lowest score.[115]There was no reasonable basis upon which it could be inferred that the reason for giving her the lowest score was for a reason connected with pregnancy, childbirth or maternity leave. There was a sufficiently adequate and cogent explanation that the reason for her score was their reasoned assessment of her performance. There was no reasonable basis upon which it could be inferred that she was selected for a reason connected with maternity leave, etc.[116]The respondent looked for suitable alternative employment. The claimant was offered and declined alternative employment because she considered it to be unsuitable. There was no reasonable basis upon which it could be inferred that the reason or principal reason for her dismissal was connected with her maternity leave, etc. There was a sufficiently adequate and cogent explanation that there was a diminished requirement for employees to carry out work of a particular kind in the place where the claimant was employed and her dismissal was wholly or mainly attributable to that situation. Accordingly the reason or principal reason for her dismissal was redundancy. Suitable vacancy on not less favourable terms Was there a suitable available vacancy to do work which was suitable and appropriate and on terms which were substantially not less favourable? (Reg 10 MAPLE)[117]Having regard to the facts noted in summary above, it was not reasonably practicable by reason of redundancy for the respondent to continue to employ the claimant under her existing contract of employment once the selection process had been completed (Carnival, EAT). The vacancy must be available, must be to do work which is suitable and appropriate, and must be on terms which are substantially not less favourable (Simpson, EAT). Suitability is judged objectively from the perspective of the employer (knowing what it does about the employee) and not that of the employee.[118]In August 2024 the respondent advertised a Grade D role in economic crime prevention and the claimant expressed an interest in that role. The respondent considered that the role was not suitable because it was a technical role and she did not have the relevant technical knowledge. Judged objectively from the perspective of the employer the work was not suitable or appropriate for her.[119]The claimant advised of her intention to return to work from maternity leave in January 2026. The respondent advertised 12 month secondments which were due to start in early November 2026. The secondments were therefore available vacancies which arose during her maternity leave once the selection process had been completed. The work was suitable and would have been appropriate for her to do had she been available to do it. The claimant was employed under a permanent contract of employment and the secondments were temporary contracts. They were accordingly on terms which were substantially less favourable.[120]There was in these circumstances no failure to comply with Reg 10 MAPLE. Was the dismissal fair or unfair? (Section 98 (4) ERA)[121]As noted above, the reason or principal reason for her dismissal was that there was a redundancy situation which is a potentially fair reason. The issue to be determined is whether her dismissal was fair or unfair in the circumstances determined according to equity and the substantial merits of the case. This depends upon whether in the circumstances (including the size and administrative resources of the Respondent’s undertaking) the Respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the Claimant in the context of the procedure adopted. The decision can only be considered unreasonable if it falls out with the range of reasonable responses open to an employer acting reasonably in those circumstances.[122]The respondent is a large employer with significant administrative resources including a dedicated HR department and a written redundancy policy.[123]The respondent engaged in collective consultation with the recognised trade union from March for 45 days regarding its proposal to reduce the number of roles in the BBFA Team by 96 including the rationale for the proposal, the impact of the proposal on staff, the steps to be taking in mitigation, the timeline, and the selection criteria. Contrary to the claimant’s assertion, there was accordingly fair and proper collective consultation.[124]On 7 May staff including the claimant were advised that BBFA was undergoing a restructure which would result in staff being at risk of redundancy. The claimant was advised that she would be placed in a pool and scored against other Team Managers. The claimant was therefore aware of a redundancy situation and a risk of redundancy.[125]Staff were provided with paperwork related to the redundancy. That paperwork advised colleagues that they could input into their scoring which no colleagues elected to do. That paperwork was emailed to the claimant but she was unable to open it because she did not have a PDF reader. She was provided with hard copies 10 days later. The claimant did not seek to input into her scoring in the period between receiving the paperwork on 16 May and being advised of the scoring outcome on 10 June.[126]Scoring Managers were provided with detailed guides on how to conduct the scoring exercise including in relation to employees absent on maternity leave. Scoring for the selection pool was undertaken by reference to the selection criteria which related to the capabilities required for the role. The claimant’s scoring period was extended back to April 2021 to make allowances for two periods of maternity leave and input was sought from other line managers. Detailed rationales were provided for the scores. Scoring was subject to calibration and sign-off by senior managers. The claimant received the lowest score. There was no overt unfairness or bias in the application of the selection criteria and no basis upon which this could reasonably be inferred. The respondent adopted a reasonable approach to the selection pool and to the selection criteria.[127]On 10 June staff including the claimant were advised the outcome of the redundancy selection process. The claimant was advised that she had been selected for redundancy, she should look for alternative roles and if she was unable to secure an alternative role her employment would terminate. Her line manager arranged for her to be provided with a laptop to enable her to look for alternative employment. She was sent laptops on 10, 21 and 29 June but was not able to liaise with IT immediately or for long periods and she did not have a working laptop until 30 June.[128]On 12 June the claimant asked MM to provide a breakdown of her scores which was not provided until 27 June. She was given adequate opportunity to comment on the scoring in advance of her appeal / grievance hearing.[129]On 10 June the claimant submitted a grievance and appeal related to the redundancy process. A detailed investigation was carried out. Her appeal was not upheld. Her grievance was partially upheld namely that there was a delay in providing her with paperwork and laptop access and MM should have responded to her whatsapp more formally. With a view to ensuring she was not at a detriment her line manager was changed to SM and her notice period was extended by 4 weeks to give additional time to find alternative roles.[130]Notwithstanding the delays in sending her the paperwork, contrary to the claimant’s assertion, she was provided with adequate information about the redundancy process in a sufficiently timely manner.[131]The claimant was provided with support with a view to identifying an alternative role. From 30 June the claimant had access to job internal job vacancies on Workday. SB and SM arranged to hold weekly meetings with the claimant over a 3 month period to support her in finding alternative employment. They arranged for those to be paid as KIT days. They offered her support in writing a new CV so that alternative roles could be identified. She was advised that if any role was suitable she would have protected status otherwise she could make an application which would be supported. They noted her requirements regarding no weekend hours (branch work), Edinburgh location and no telephony based work. They searched for Grade D or C roles in Edinburgh. She was advised that there were no Grade D Team Manager roles and the claimant did not identify any. She was offered a Grade C role on a pay protected basis which she declined because it was a telephony role. The claimant did not apply for any roles. Contrary to the claimant’s assertion she was provided with adequate information about alternative roles and the respondent actively considered whether there was suitable alternative employment available for her.[132]The respondent engaged in individual consultation with the claimant through her meetings with MM as her line manager, MG who heard her grievance and appeal, SB and SM her new line manager, which meetings considered both the selection process and mitigation of the risk of redundancy. There was accordingly fair and proper individual consultation.[133]On 3 October the claimant expressed interest in two Team Manager roles. Both were 12 month secondments which were due to start imminently. The claimant had advised that she was not due back from maternity leave until January 2025. She was advised that the seconded roles were not deemed suitable but she was advised to apply asap and select that she was “at risk”. Staff at risk of redundancy are given preferential treatment. The claimant did not apply. Under the respondent’s redundancy policy temporary alternative employment may be considered suitable because it would enable a longer period of employment and more time to identify redeployment. However it fell within the band of reasonable responses for the respondent to conclude that the seconded roles did not constitute suitable alternative employment for the claimant in these circusmtances because the secondment required an imminent start and she was not available for 2 months.[134]Contrary to the claimant’s assertion, the redundancy process was not tainted by discrimination and was not pre-determined or a foregone conclusion. There was a genuine redundancy situation, the claimant had received the lowest score following a fair scoring process, and no suitable alternative employment was identified which matched her criteria following a reasonable search.[135]Taking into consideration the significant size and administrative resources of the respondent and the procedure adopted, dismissal of the claimant by reason of redundancy fell within the range of reasonable responses open to an employer acting reasonably in the circumstances of this case and accordingly the decision to dismiss was fair.
Conclusion
[136]In conclusion the complaints of maternity discrimination (under Section 18 EA, Section 47C ERA and Regulation 19 MAPLE) and unfair dismissal (under Regulation 20 MAPLE and Section 98 ERA) do not succeed and are accordingly dismissed.