Helen Ballerino v The Racecourse Association Ltd

The Employment Appeal Tribunal allowed the claimant's appeal and remitted the claims for reconsideration because the Employment Tribunal failed to engage with whether there was a genuine redundancy as defined by section 139 Employment Rights Act 1996. The ET had considered suitability of an alternative vacancy under regulation 10 Maternity and Parental Leave etc Regulations 1999 but did not address the statutory test for redundancy, a necessary step when the existence of redundancy was put in issue for the claimant's section 99 ERA claim and for the respondent's non-discriminatory explanation after the burden shifted under section 136 Equality Act 2010.

Key legal principles applied were: the statutory definition of redundancy in section 139 ERA; the MAPLE regulation 10(2)-(3) and regulation 20(1)(b) (triggering automatic unfair dismissal under section 99 ERA if suitable alternative vacancy is not offered); the shifting burden of proof under section 136 EqA; and the appropriate scope of an ET's reasoning on questions of fact (Robinson; Shawkat; Kingwell). The ET's failure to apply the section 139 test rendered its decision unsafe and required remission.

This was an appeal from a decision of the Reading Employment Tribunal (sent 27 May 2022) in which the ET dismissed the claimant's claims of direct sex discrimination and pregnancy and maternity discrimination and dismissed her claim of automatic unfair dismissal under section 99 ERA, while upholding unpaid holiday and notice pay claims. The claimant had been employed as a part-time Financial Accountant, commenced maternity leave in December 2018, and was dismissed during that leave when the employer created a new full-time Finance Manager and Business Analyst role said to subsume her duties.

The claimant argued that the redundancy was a sham and that her dismissal amounted to less favourable treatment because of sex or because of pregnancy/maternity; alternatively, if there was a redundancy, the respondent had failed to offer a suitable alternative vacancy so that regulation 20(1)(b) MAPLE rendered the dismissal automatically unfair under section 99 ERA.

The ET found the burden of proof had shifted under section 136 EqA but accepted the respondent's explanation that the claimant's role had been subsumed into a materially different full-time post and that the new post was not a suitable alternative vacancy under regulation 10 MAPLE. The ET did not, however, explicitly analyse whether there had been a redundancy within the meaning of section 139 ERA.

The EAT held that because the existence of a redundancy was a live and central issue (it was the respondent's specific explanatory case and the claimant asserted it was a sham), the ET was required to satisfy itself that the statutory test in section 139 ERA was met. The EAT explained that in some cases an ET may proceed straight to suitability of an alternative vacancy only if redundancy is not genuinely in issue, but on these facts there was overlap between the section 139 inquiry and the regulation 10 suitability inquiry. The ET's failure to address whether the respondent's requirement for work of a particular kind had ceased or diminished (section 139) rendered its decision unsafe.

The EAT remitted the discrimination and automatic unfair dismissal issues to the same ET for reconsideration, explaining that the panel had made many unchallenged findings and was best placed to determine the factual question of redundancy and then address suitability and discrimination where relevant.

Appeal allowed. The Employment Tribunal erred by failing to engage with whether there was a genuine redundancy within the meaning of section 139 Employment Rights Act 1996. That question was necessary both for the claimant's section 99 ERA automatic unfair dismissal claim (regulation 20(1)(b) MAPLE) and for assessing the respondent's non-discriminatory explanation after the burden shifted under section 136 Equality Act 2010. The matter was remitted to the same ET to determine whether a redundancy existed and then to revisit suitability and discrimination issues.

Appeal from the Reading Employment Tribunal (decision sent 27 May 2022; hearing before Employment Judge Anstis with lay members Ms Farrell and Ms Gibson over days in October 2021 and March 2022, plus two days in chambers). EAT hearing 14 May 2024, judgment handed down 20 June 2024, Neutral Citation [2024] EAT 98.