Helen Ballerino v The Racecourse Association Ltd

Where an employer relies specifically on redundancy as the explanation for dismissing an employee, the tribunal must determine whether the statutory definition of redundancy is met. A business reorganisation, a new role, different skills, or an apparent reduction in headcount does not by itself establish redundancy.

In a claim under section 99 of the Employment Rights Act 1996, the tribunal may sometimes assume redundancy and decide whether there was a suitable alternative vacancy. That course is unsafe where the statutory redundancy issue overlaps with the assessment of the new role. Once the burden of proof has shifted under the Equality Act 2010, a respondent relying on redundancy must establish that explanation where the alleged redundancy is said to be a sham.

The claimant, a part-time Financial Accountant, was dismissed during maternity leave after the respondent created a full-time Finance Manager and Business Analyst role. The respondent said that the claimant’s role had been subsumed and was redundant. The claimant contended that this was a sham and amounted to sex, pregnancy and maternity discrimination. Alternatively, she contended that the new role was a suitable available vacancy which should have been offered under the Maternity and Parental Leave etc Regulations 1999.

The Reading Employment Tribunal dismissed her claims of automatic unfair dismissal and discrimination, while upholding claims for holiday and notice pay. It found that the new role was not a suitable alternative vacancy and accepted the respondent’s explanation. The appeal concerned whether the tribunal had to decide whether there was a genuine statutory redundancy before rejecting those claims.

1. Appeal allowed. The Employment Tribunal’s decision was unsafe because it failed to determine whether the claimant’s dismissal was by reason of redundancy within section 139 of the Employment Rights Act 1996.

2. That determination was necessary for the section 99 claim. Regulation 20(1)(b) of the Maternity and Parental Leave etc Regulations 1999 applies only where dismissal was by reason of redundancy and regulation 10 was not complied with. An Employment Tribunal may in some cases proceed on an assumed redundancy and decide whether a suitable alternative vacancy existed. On these facts, however, the redundancy inquiry overlapped with the suitability of the new role.

3. Redundancy could not be determined by impression. The tribunal had to identify the particular kind of work and decide whether the employer’s requirement for employees to perform that work had ceased or diminished, or was expected to do so. A reorganisation, a new role containing additional duties, different skills, or an apparent reduction in headcount did not answer that statutory question.

4. The same omission affected the discrimination claims. Having found that the burden had shifted under section 136 of the Equality Act 2010, the tribunal had to decide whether the respondent had established its stated non-discriminatory explanation. That explanation was specifically that the claimant’s role was redundant under section 139, not merely that there had been a business reorganisation. The tribunal rejected the allegation of a sham without deciding whether there was in fact a redundancy.

5. The matter was remitted, if practicable, to the same tribunal to determine the redundancy issue and then reconsider the automatic unfair dismissal and discrimination claims. The earlier tribunal’s unchallenged findings could remain available; its error was not a wholly flawed or completely mishandled hearing.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2024] EAT 98 and remitted the automatic unfair dismissal and discrimination claims for reconsideration.
• Reading Employment Tribunal: By a judgment sent on 27 May 2022, dismissed the claims of unfair dismissal and sex, pregnancy and maternity discrimination, but upheld claims for unpaid holiday and notice pay.