Walsall Metropolitan Borough Council v Christine Oliver

An Employment Tribunal may determine only the claim fairly discernible from the ET1, unless a new cause of action is properly introduced by amendment. A list of issues is a case-management tool, not a pleading. Where a new automatic unfair dismissal claim under section 99 is advanced during evidence, the Tribunal should identify its terms, obtain the respondent’s response, and determine the amendment under the Selkent guidance, including jurisdictional time limits.

For a redundancy dismissal, regulation 10 requires factual findings on whether a vacancy was available, suitable and appropriate for the employee, and not on substantially less favourable terms. The protection does not require a competitive application process, but it does not turn on whether the vacancy was a “preferential role”.

The claimant was made redundant while on maternity leave. Her ET1 pleaded pregnancy or maternity discrimination under section 18 of the Equality Act 2010. At a preliminary hearing, her sex-discrimination and money claims were withdrawn and the remaining claim was recorded as maternity discrimination.

At the merits hearing, the ET treated an allegation in its list of issues concerning preferential employment as raising a breach of regulation 10 of the Maternity and Parental Leave etc Regulations 1999. It dismissed the discrimination claim but upheld automatic unfair dismissal under section 99 of the Employment Rights Act 1996.

The respondent appealed, contending that the automatic-unfair-dismissal claim was not before the ET, was out of time, and had not been determined by applying the statutory suitability criteria.

1. Appeal allowed on grounds 1, 2, 4 and 5. On the ET’s own account, the only claim before it at the start of the merits hearing was maternity discrimination under section 18 of the Equality Act 2010. A section 99 automatic-unfair-dismissal claim based on regulation 10 of the Maternity and Parental Leave etc Regulations 1999 was separate and distinct. It did not fairly emerge from the ET1: the pleaded facts did not allege that a suitable available vacancy should have been offered.

2. The list of issues could not itself add that new cause of action. If the claimant’s cross-examination was advancing it, the ET should have treated that course as an application to amend. It had to identify the proposed amendment, permit the respondent to answer it, and decide it under the Selkent considerations. Proceeding without that process deprived both parties of clarity on the relevant statutory issues.

3. The ET also erred by refusing to address time. The time limit for unfair dismissal under section 111 of the Employment Rights Act 1996 is jurisdictional and cannot be conferred by agreement or waiver. Although a claim presented on 11 May 2022 would have been in time after early-conciliation extension, the ET had found that no regulation 10 claim was then presented. Any later amendment required consideration of whether the statutory test for extending time was met.

4. If a regulation 10 claim had properly been before the ET, it was required to find whether each asserted vacancy was available and met regulation 10(3): work suitable for, and appropriate to, the claimant, on terms not substantially less favourable than her existing contract. The ET made no such findings for either the assistant-manager or residential-childcare-worker roles. Its use of a “preferential role” test, and its apparent focus on consultation and opportunity to demonstrate skills, introduced an irrelevant reasonableness inquiry.

5. The perversity ground was dismissed. The claimant’s failure to apply for the assistant-manager role did not answer whether regulation 10 required that role to be offered without competition. The EAT directed written submissions before making its final order on whether the section 99 claim must be dismissed.

• Employment Appeal Tribunal: Allowed the respondent’s appeal from the West Midlands ET’s liability judgment, sent on 25 October 2023, which had upheld automatic unfair dismissal under section 99 of the Employment Rights Act 1996.
• West Midlands Employment Tribunal: Dismissed the claimant’s section 18 maternity-discrimination complaint but found a breach of regulation 10 of the Maternity and Parental Leave etc Regulations 1999 and held the dismissal automatically unfair.