Walsall Metropolitan Borough Council v Christine Oliver

The Employment Appeal Tribunal allowed the respondent's appeal. The Employment Tribunal erred in law by proceeding to determine an automatic unfair dismissal complaint under regulation 10 of the Maternity and Parental Leave etc Regulations 1999 which was not properly before it and which had not been the subject of any application to amend the ET1 or the pleaded case. The tribunal should have treated the matter as an application to amend (Ladbrokes Racing Ltd v Traynor; Selkent Bus Co Ltd t/a Stagecoach v Moore) and, if amendment had been sought, considered the jurisdictional time limits for unfair dismissal under section 111 Employment Rights Act 1996 and section 207B ERA extensions for Acas conciliation.

The ET also failed to make the necessary factual findings required by regulation 10(3) of the 1999 Regulations as to whether the assistant manager post (or the residential childcare worker post) was a suitable available vacancy, appropriate in the claimant's circumstances and not on substantially less favourable terms. Because the claim of automatic unfair dismissal had not been properly pleaded or the jurisdictional position addressed, the ET should not have determined that separate cause of action on the merits.

Background and procedural posture:

The claimant, employed as a care manager, was dismissed by reason of redundancy while on statutory maternity leave on 24 December 2021. She presented an ET1 on 11 May 2022 after Acas early conciliation. At the preliminary hearing the tribunal recorded a single remaining claim of maternity discrimination under section 18 Equality Act 2010 and drew up a list of issues. The claimant attended the full merits hearing in September 2023 and in the course of evidence the Employment Tribunal proceeded to consider whether regulation 10 of the Maternity and Parental Leave etc Regulations 1999 applied and whether a failure to offer suitable alternative employment rendered the dismissal automatically unfair under section 99 Employment Rights Act 1996.

Nature of the claim/application:

• (i) The claimant sought a remedy for maternity discrimination under section 18 EqA and, as determined by the ET at the merits hearing, a separate claim of automatic unfair dismissal under section 99 ERA by reason of an alleged breach of regulation 10 of the 1999 Regulations.

Issues framed by the court:

• (ii) Whether the ET had jurisdiction to determine a claim under regulation 10 that had not been pleaded in the ET1 or properly put before the tribunal; whether the tribunal should have treated that as an application to amend and addressed time limits; and whether, on the merits, the tribunal made the required findings as to suitability, appropriateness and comparative terms under regulation 10(3).

Reasoning and disposition:

The EAT held that the ET was wrong to decide a distinct cause of action which had not been presented in the claimant's ET1 and had not been the subject of a proper amendment process. The tribunal should have invited or required an application to amend, allowed the respondent an opportunity to address the proposed amendment and considered the Selkent factors including whether the unfair dismissal claim was in time under section 111 ERA (with any extension under section 207B). The EAT found the ET also failed to make the essential factual findings under regulation 10(3) (suitability and appropriateness of the assistant manager vacancy and whether terms would have been substantially less favourable). The EAT allowed the appeal on these grounds, and invited further written submissions from the parties on the final disposal given the jurisdictional and procedural conclusions.

Appeal allowed. The Employment Tribunal erred in law by determining an automatic unfair dismissal complaint under regulation 10 that was not properly before it and by failing to treat that as an application to amend and to consider jurisdictional time limits; further, the ET did not make the required factual findings under regulation 10(3) as to suitability and terms, so its substantive finding of automatic unfair dismissal could not stand without further proper procedure.

Appeal from the reserved judgment of the West Midlands Employment Tribunal (Employment Judge Steward, with Mrs Ahmad and Ms Malatesta) following a hearing on 25-27 September 2023 and the reserved decision sent to the parties on 25 October 2023. The EAT heard the appeal (hearing 27 November 2024) and handed down judgment on 20 December 2024.