Carnival PLC (t/a Carnival UK) v Laura Hunter

In a conventional redundancy exercise which reduces the number of employees holding the same existing generic role, the retained roles are not, without more, suitable available vacancies for the purposes of Regulation 10. Regulation 10 does not displace a valid selection process by requiring an employee on maternity leave to be offered a role retained by a higher-scoring employee.

When determining ordinary unfair dismissal, a tribunal must assess the employer’s reasonableness without substituting its own view of redundancy scores or subjecting them to over-minute scrutiny. If scoring flaws are identified, the tribunal must explain how a fair assessment would have altered the employee’s selection outcome.

The Claimant, a team leader on maternity leave, was selected for redundancy when the Respondent reduced 21 team leader posts to 16. The Employment Tribunal found her dismissal automatically unfair under the Maternity and Parental Leave Regulations 1999 and ordinarily unfair. It treated the retained team leader roles as suitable alternative vacancies and identified flaws in her scoring and a supposed failure to defer her dismissal.

The Respondent appealed. The central issues were whether retained generic roles were vacancies within Regulation 10, and whether the Tribunal had lawfully concluded that the redundancy selection and dismissal were unfair.

1. Appeal allowed. Grounds 3 to 5 succeeded. The findings of automatic and ordinary unfair dismissal were quashed and the matter was remitted for a complete rehearing before a fresh Employment Tribunal.

2. Regulation 10 applies only where an employee would otherwise be made redundant and there is a suitable available vacancy to be offered under a new contract. The retained team leader posts had all pre-existed and were occupied within a pool of 21 generic roles being reduced to 16. They were therefore not vacancies. In a conventional reduction of existing roles, Regulation 10 does not require an employee protected by maternity leave, but scoring below others, to displace an employee who would otherwise remain employed.

3. The Tribunal’s contrary conclusion was an error of law. Alternatively, it had not adequately explained how reducing the number of occupied generic posts created vacancies capable of being offered under a new contract. The automatic-unfair-dismissal finding was consequently unsustainable.

4. On ordinary unfair dismissal, the Tribunal had to assess whether the Respondent acted reasonably without substituting its own view for that of the employer or conducting over-minute scrutiny of the marking. Its criticism of another employee’s scores rested on its own speculation about his experience. It also failed to identify the scoring factors or corrected scores which would have given the Claimant the two additional points needed to enter the retained group. It had not explained how any identified lack of objectivity changed the selection result.

5. The Tribunal’s separate conclusion based on deferred redundancy also rested on a misunderstanding of the evidence concerning another employee. That finding was likewise an error of law. Ground 1 was not determined because, following the success of the other grounds, it was relevant only to disposal.

6. A fresh Tribunal should hear the matter afresh. The legal difficulties in the Reasons, the Tribunal’s firm factual conclusions, the passage of time, and the practical difficulty of reassembling the original panel supported that course.

• Employment Appeal Tribunal: Allowed the Respondent’s appeal on Grounds 3 to 5, quashed the findings of automatic and ordinary unfair dismissal, and remitted the case to a fresh Employment Tribunal.
• Employment Tribunal: Following a hearing from 8 to 10 November 2023, found the Claimant automatically and ordinarily unfairly dismissed. Its written reasons were sent on 2 May 2023. The pregnancy or maternity discrimination claim was dismissed.