Hulley & Kirkwood Consulting Engineers Ltd v Marston

An Employment Tribunal must give reasons which identify the material findings of fact, state the applicable law concisely, and explain how those findings and law determine each issue. Vivid criticism of an employer’s conduct does not substitute for that analysis.

Where claims concern redundancy, maternity leave and discrimination, the Tribunal must explain the factual basis on which it finds that the dismissal was pregnancy- or maternity-related, that statutory maternity protections were breached, or that dismissal was otherwise unfair. If the reasons do not permit the parties or an appellate court to understand why those conclusions were reached, the decision contains an error of law and may require rehearing.

The claimant, a national marketing manager, was dismissed for redundancy while on maternity leave. She brought claims for unfair dismissal, sex and maternity discrimination, victimisation, and breach of maternity-leave protections. The race claims were withdrawn.

The Employment Tribunal held that the dismissal was unfair under ERA 1996, was automatically unfair, and amounted to sex and pregnancy and maternity discrimination. It also found breaches of regulations 10 and 20 of the Maternity and Parental Leave etc. Regulations 1999.

The employer appealed. Its principal contention was that the Tribunal’s reasons did not disclose the findings and legal analysis necessary to support its conclusions, particularly the conclusion that dismissal was related to pregnancy or maternity leave.

1. Appeal allowed. The Employment Tribunal’s reasons did not comply with rule 30(6) of the Employment Tribunal rules. They did not adequately identify the findings of fact, state the applicable law concisely, or explain the application of fact and law to the issues.

2. The Tribunal had found that a redundancy situation existed. It then held that the claimant had been written off after commencing maternity leave and that this constituted pregnancy and maternity discrimination, breaches of regulations 10 and 20 of the Maternity and Parental Leave etc. Regulations 1999, and automatic unfair dismissal. Those conclusions lacked an explained factual basis. In particular, the reasons did not explain why the dismissal was pregnancy- or maternity-related.

3. The Tribunal’s language conveyed its adverse view of the employer’s process, but did not provide the structured factual findings and legal reasoning required by rule 30(6). It was therefore impossible to determine whether the statutory tests under ERA 1996, the Equality Act 2010, and the maternity regulations had been correctly applied.

4. The case was remitted for a complete rehearing before a differently constituted Employment Tribunal. The original Tribunal had already expressed its view of the evidence, and the interests of justice required a fresh Tribunal.

• Employment Appeal Tribunal: Appeal allowed; the Employment Tribunal decision was set aside and the case remitted for rehearing before a fresh Tribunal: [2014] UKEAT 0078_13_2102.
• Employment Tribunal, Birmingham: Reasons sent to the parties on 31 May 2012. The Tribunal upheld claims of unfair dismissal and sex and maternity discrimination, and found breaches of the Maternity and Parental Leave etc. Regulations 1999.