Gregg v Troy Asset Management Ltd

Whether an employee returning from maternity leave has been returned to the same job under Regulation 18 requires a factual and purposive assessment of the nature of the work, the capacity in which it is done and the place of employment. The contractual description is relevant but not definitive. A tribunal must determine a material alternative case that emerged at the hearing where it was tested in evidence and addressed in submissions, even if it was not expressly included in a pre-hearing list of issues.

A breach of the right to return does not by itself establish automatic unfair dismissal. The employee must also establish a repudiatory breach, resignation in response to it, and thus a dismissal before the automatic-unfair-dismissal provisions are engaged.

The claimant resigned shortly before her planned return from additional maternity leave. She alleged pregnancy and maternity discrimination, constructive unfair dismissal and automatic unfair dismissal. Her employer had reorganised its dealing function and proposed that she return as a Dealer and Portfolio Administrator, reporting to a newly created Head of Execution.

The Employment Tribunal dismissed all claims. It found that the claimant had no right to the more senior Head of Execution role and rejected her complaint that she had not been meaningfully consulted about the external review.

On appeal, the claimant contended that the Tribunal had failed to decide an alternative case advanced at the hearing: that her returned role was not the same job because managerial or supervisory functions and client contact had been removed. The central issues were the proper approach to Regulation 18 of the Maternity and Parental Leave etc Regulations 1999 and the consequences of any breach for automatic unfair dismissal.

1. Appeal allowed in part. The Employment Tribunal had not determined the claimant’s alternative Regulation 18 case. Although it correctly rejected the assertion that she was entitled to the new and more senior Head of Execution role, it did not engage with the distinct contention that the job to which she was to return differed in its nature and capacity because managerial or supervisory responsibilities and client contact would be removed.

2. The correct approach to the same-job question was that in Blundell v Governing Body of St Andrews Roman Catholic Primary School [2007] IRLR 652. The contract is relevant to the nature of the work but is not definitive. Capacity is a factual description of the employee’s function. The inquiry is fact-sensitive and must be undertaken purposively, with the aim of avoiding unnecessary dislocation on return from maternity leave.

3. Napoli v the Italian Ministry of Justice [2014] ICR 486 did not replace that domestic inquiry with a general question whether developments during leave had negatively affected working conditions. Article 15 concerned a right to benefit from improvements in working conditions. A tribunal must instead address the particular domestic statutory question, while bearing in mind the Directive’s purpose.

4. The consultation ground failed. The Tribunal’s findings about the limited involvement of the dealers who were at work, the claimant’s failure to seek involvement, and the employer’s likely willingness to arrange it were open to it. No overwhelming perversity case was established.

5. The case was remitted to the same Tribunal to decide whether the returned role was the same job under Regulation 18. If it finds a breach, it must reconsider automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and Regulation 20. A Regulation 18 breach does not itself establish dismissal or automatic unfair dismissal; repudiatory breach and resignation in response must also be proved. A breach may instead be actionable as a detriment under Regulation 19.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted the Regulation 18 issue, and the consequential automatic-unfair-dismissal issue, to the same Employment Tribunal.
• Employment Tribunal, London Central: Dismissed the claimant’s discrimination, constructive unfair dismissal and automatic unfair dismissal claims after a hearing in June 2014.