Langford v East Sussex County Council

In a redundancy dismissal, fairness requires a proper assessment of consultation and of the employer’s attempts to identify alternative employment. A tribunal cannot uphold dismissal where a material factual error about the nature and potential suitability of available posts undermines that assessment.

Where priority rights under Maternity and Parental Leave Regulations 1999 regulation 10 are in issue, suitability must be determined on an accurate understanding of the vacancy. A conclusion on a related maternity-discrimination claim may also be set aside where it rests on the same material error.

The Claimant, a qualified teacher employed as a PE and sports consultant, was selected for redundancy during a service-wide restructuring shortly before and during her maternity leave. Her post was deleted and she was dismissed with effect from 31 August 2011.

She claimed unfair dismissal, breach of regulation 10 of the Maternity and Parental Leave Regulations 1999, and pregnancy and maternity discrimination under section 18 of the Equality Act 2010. The Employment Tribunal dismissed all claims. It treated two Key Stage maths consultancy vacancies as unsuitable, apparently on the mistaken basis that they were teaching posts.

The Claimant appealed. The central issues were whether the Tribunal had adequately assessed the fairness of the redundancy dismissal and whether its factual misunderstanding vitiated its conclusions on the alternative vacancies and the statutory claims.

1. Appeal allowed. The Employment Tribunal’s dismissal of all three claims was set aside and the matter was remitted to a differently constituted Employment Tribunal.

2. For unfair dismissal, the Tribunal had not adequately assessed the fairness of the redundancy dismissal. Reasonable consultation could not be established merely by the meeting of 1 February 2011 where the Claimant’s central question, whether redeployment could be deferred until the end of maternity leave, remained unanswered for two months while vacancies were being circulated and filled.

3. A central part of the assessment of the reasonableness of a redundancy dismissal is whether the employer made reasonable attempts to find alternative employment. The Tribunal materially erred by treating the Key Stage 1 and Key Stage 2 maths consultancy roles as teaching posts. They were central-function consultant posts. Its acceptance that the Respondent could reasonably regard them as unsuitable was therefore founded on a mistaken view of the facts. That error undermined the finding that dismissal for redundancy was fair.

4. Under regulation 10 of the Maternity and Parental Leave Regulations 1999, an employee is entitled to be offered a suitable available vacancy before her existing employment ends. The same factual error undermined the majority’s conclusion that the maths consultancy posts were unsuitable. The dismissal of the regulation 10 claim was therefore set aside, without needing to determine the Tribunal’s conclusions concerning the 155 teaching vacancies.

5. The Tribunal’s rejection of the section 18 claim under the Equality Act 2010 was tainted by the same erroneous view of the consultancy roles and could not stand.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal, set aside the Employment Tribunal judgment sent on 18 March 2013, and remitted all claims for a fresh hearing before another Employment Tribunal.
• Employment Tribunal: Dismissed claims for unfair dismissal, breach of regulation 10 of the Maternity and Parental Leave Regulations 1999, and discrimination under section 18 of the Equality Act 2010.