Victoria and Albert Museum v Durrant

Section 106 of the Employment Rights Act 1996 applies only where its cumulative conditions are satisfied. The written information given on engagement must clearly and unambiguously state that employment will end when another employee returns from pregnancy or maternity-related absence. Surrounding circumstances cannot cure ambiguous wording.

Whether the employee was dismissed to facilitate that return under section 106(2)(b) is a question of fact. A tribunal’s finding on the employer’s operative reason is not an error of law where it is supported by the evidence.

Failure to secure alternative employment does not itself establish redundancy. The statutory question is whether the employer’s requirements for employees to carry out work of a particular kind had ceased or diminished.

Mr Durrant, a long-serving museum employee, became unable to return to his former Picture Library work after illness. He was placed in temporary roles while seeking permanent redeployment. His employment ended when a fixed-term maternity-cover appointment expired and no alternative post had been found.

The Employment Tribunal held that section 106 of the Employment Rights Act 1996 did not apply, that the operative reason was not capability, and that the dismissal was by reason of redundancy. The Victoria and Albert Museum appealed. The central issues were whether section 106 applied, whether capability remained the reason for dismissal, and whether the absence of alternative work amounted to redundancy.

1. Section 106. The appeal was rejected on the section 106 issues. The conditions in section 106(2)(a) and (b) are cumulative. Written information must give a clear and unequivocal statement, at the outset, that employment will terminate on the resumption of work by the employee absent because of pregnancy or childbirth. Ambiguity cannot be cured by combining the wording with inferences from the surrounding circumstances.
2. Compliance with section 106(2)(b) depends on the facts. The Employment Tribunal was entitled to find that Mr Durrant was dismissed because no permanent or alternative employment had been secured, rather than to facilitate the returning employee’s resumption of work. That finding was supported by the history and correspondence and was not open to challenge as an error of law.
3. The Employment Tribunal was also entitled to reject capability as the operative reason. The correspondence identified competing possible reasons and did not clearly articulate capability. The tribunal’s conclusion concerned the employer’s actual reason or set of beliefs and was a finding of fact.
4. The Tribunal misdirected itself on redundancy. Under section 139(1)(b), the issue is whether the employer’s requirements for employees to carry out work of a particular kind had ceased or diminished. It is not whether the employer needed fewer employees on particular terms and conditions, or whether no suitable alternative job had been found. The Tribunal had confused the difficulty of redeployment with a general redundancy situation.
5. The appeal was therefore allowed on redundancy and remitted to the same Employment Tribunal. The findings that section 106 did not apply, capability was not the reason, and no alternative employment was available stood. The Tribunal was to reconsider whether those circumstances amounted to redundancy or some other substantial reason, applying the statutory test and considering evidence about work transferred to V & A Enterprises Ltd and the number and nature of comparable posts.

The Tribunal’s suggestion that section 106 could never coexist with redundancy was rejected as unnecessary to the decision and was treated as an additional observation only. Section 106 does not automatically displace redundancy where redundancy is the true reason for dismissal.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal judgment entered on 30 June 2009. The appeal was allowed on the redundancy issue and remitted to the same tribunal. The findings on section 106 and capability were upheld.
• Earlier appeal: Mr Durrant’s cross-appeal had been dismissed in November 2009.