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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Simpson v Endsleigh Insurance Services Ltd & Ors [2010] UKEAT 0544_09_2708 (27 August 2010)
URL: http://www.bailii.org/uk/cases/UKEAT/2010/0544_09_2708.html
Cite as: [2011] ICR 75, [2010] UKEAT 0544_09_2708

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BAILII case number: [2010] UKEAT 0544_09_2708
Appeal No. UKEAT/0544/09

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 27 July 2010
             Judgment delivered on 27 August 2010

Before

HIS HONOUR JUDGE ANSELL

MR T MOTTURE

MR P SMITH



MISS M SIMPSON APPELLANT

(1) ENDSLEIGH INSURANCE SERVICES LTD
(2) MISS C WOOD
(3) MISS M THOMPSON
(4) MISS A COTTON
RESPONDENT


Transcript of Proceedings

JUDGMENT

© Copyright 2010


    APPEARANCES

     

    For the Appellant MR DAVID STEPHENSON
    (of Counsel)
    Instructed by:
    London Discrimination Unit
    Co-operative Centre
    11 Mowll Street
    London
    SW9 6BG
    For the Respondents MS ANYA PALMER
    (of Counsel)
    Instructed by:
    Messrs Osborne Clarke Solicitors
    2 Temple Back East
    Temple Quay
    Bristol
    BS1 6EG


     

    SUMMARY

    SEX DISCRIMINATION

    Burden of proof

    Pregnancy and discrimination

    UNFAIR DISMISSAL – Automatically unfair reasons

    Regulation 10(3)(a) and Regulation 10(3)(b) of the Maternity and Parental Leave Regulations 1999 must be read together in determining whether there is a suitable available vacancy under Regulation 10(2).

    HIS HONOUR JUDGE ANSELL

  1. This has been a hearing of an appeal and cross-appeal from a judgment of a London Central Tribunal chaired by Mr Sigsworth who, having sat in July and August 2009 sent out reasons on 21 September 2009 in which they dismissed claims of unfair dismissal under section 98 ERA, automatic unfair dismissal under section 99 ERA, race discrimination and racial harassment.
  2. This appeal relates to the automatic unfair dismissal allegation being that whilst on maternity leave the Appellant was made redundant and the Respondents failed to offer her a suitable alternative vacancy at their call centre in Cheltenham, thereby being in breach of Regulation 10 of the Maternity and Parental Leave Regulations 1999 (The Regulations), thus, making the dismissal unfair under section 99 ERA.
  3. The Appellant had worked as an insurance consultant in London. Whilst on maternity leave the Respondents closed down most of their retail outlets, relocating the business to call centres in Cheltenham, Burnley and Northern Ireland. The Appellant claimed that she should have been offered alternative employment in the Cheltenham centre. Leave for the full hearing of the appeal was given by Silber J on 21 December 2009 and for the cross-appeal by HHJ Richardson on 16 February 2010.
  4. Setting out the main statutory provisions at the outset they are as follows:
  5. "Employment Rights Act 1996
    Section 99
    (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
    (a) the reason or principal reason for the dismissal is of a prescribed kind, or
    (b) the dismissal takes place in prescribed circumstances.
    (2) In this section "prescribed" means prescribed by regulations made by the Secretary of State.
    (3) A reason or set of circumstances prescribed under this section must relate to -
    (a) pregnancy, childbirth or maternity,
    (b) ordinary, compulsory or additional maternity leave,
    (ba) ordinary or additional adoption leave,
    (c) parental leave,
    (ca) ordinary or additional paternity leave, or
    (d) time off under section 57A;
    and it may also relate to redundancy or other factors.
    "Maternity and Parental Leave Regulations 1999
    Regulation 20 - Unfair dismissal
    (1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if -
    (a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or
    (b) the reason or principal reason for the dismissal is that the employer is redundant, and regulation 10 has not been complied with."
    "Maternity and Parental Leave Regulations 1999
    Regulation 10 - Redundancy during maternity leave
    (1) This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.
    (2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).
    (3) The new contract of employment must be such that -
    (a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
    (b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract."

  6. It can, therefore, be seen that at the heart of this case is whether or not there was a suitable alternative vacancy to be offered to the Appellant and the interaction between Regulation 10(2) and 10(3).
  7. Facts and History of Claim

  8. As stated above the Appellant was employed as an insurance consultant from 5 June 2006 until 21 August 2008 when she was dismissed for redundancy. Her place of work was mainly the Respondent's branch in King's College, although she worked in other university branches, and occasionally spent a day in a high street branch in Chiswick. Much of the evidence in the case related to the Appellant's relationship with her superiors, particularly a Miss Wood and Miss Thompson, which gave rise to the allegations of discrimination and harassment with which we are not concerned.
  9. The Appellant went on annual leave on 30 April 2008 and was due to start her maternity leave on 16 May 2008. The baby was born early on 11 May 2008 and there were complications at birth and both mother and baby were in hospital for several weeks. Thereafter, she stayed with her mother for a further five weeks, returning home in early July 2008.
  10. Dealing with the facts of the redundancy we adopt the history as set out in paragraphs 4.17 and 4.18 of the Tribunal's decisions:
  11. "The Claimant's redundancy. In May 2007, the first Respondent began a consultation process in respect of a proposal to close down its entire retail branch network, of some 119 branches employing 314 employees. The number of people visiting the branches had dwindled to an extremely small number and over 80 per cent of enquiries now originated from the internet. It was proposed therefore to close the retail branches and put additional resource into the call centres in Cheltenham and Burnley and a new call centre in Northern Ireland. The company engaged in a detailed collective consultation process with an existing standing body, The ComGroup. An announcement was made to all staff on 7 May and this was followed up in writing. The Claimant was on maternity leave at the time of the announcement. However, she was telephoned on the morning of the announcement along with all other staff who were absent from work that day for any reason, to invite her to attend the announcement meeting that afternoon. In the event she did not attend the meeting, and was therefore sent an announcement pack. Correspondence about the consultation process was sent to the Claimant on a few dates in May, two in June and one in July. Some of these letters and communications contained details of alternative vacancies that existed in the business which the Claimant was invited to find out more about or apply for if she wanted to do so. All insurance consultants were also guaranteed a role within one of the call centres in Burnley, Cheltenham or Northern Ireland if they were willing to transfer to one of these locations, and financial relocations, incentives were offered to all staff that moved. 11 staff did indeed transfer into call centres at the end of the consultation process. By mid August 2008 the period of collective consultation had come to an end, and the redundancies of all branch based staff who had not secured employment elsewhere was confirmed. A letter was sent to the Claimant accordingly.
    The Claimant said that when she returned home in early July all the mail the Respondent had been sending her was sitting on her doormat. She skim read it, she said, and saw some vacancies, although she did not look through each one. On 4 July, the Claimant was sent the conclusion of consultation agreement and retail sales closures document which stated at paragraph 7.1 that all retail sales staff could apply for sales within the Sales Operations Division in Cheltenham, Burnley, or Belfast or for one of the field roles in the proposed new structure. Staff applying for an insurance consultant position within the Sales Operations Division would be automatically offered a position. It is not clear to us on the evidence whether the Claimant read this or not. She confirmed to us that she had not even read all the documents she was sent by the Respondent to this day. Vacancy lists were sent to her regularly, with several vacancies which the Claimant now says that she feels that she was suitable for. However, at that time at no stage did the Claimant indicate to the Respondent that she was interested in any of the roles which were sent to her. Although the Claimant now says that she had been very ill following the birth of her child and that much of her attention was focussed on looking after herself and her child at this time, and she put forward that as a reason for not reading documentation sent to her by the Respondent, we note that nevertheless she was still able to put in a detailed typed 12-page grievance to the Respondent immediately on her return home on Monday, 7 July 2008."

  12. Miss Cotton, the Respondent's HR Manager, gave evidence before the Tribunal that none of the roles sent to the Appellant were considered to be suitable alternative roles. Equally, if she or other staff chose not to apply for them, they would still be entitled to redundancy payment. There were only two roles in London that she could have applied for which would not have required her to relocate away from the London area, but these roles were not considered by Miss Cotton to be suitable for the Appellant and there was no dispute on that issue. There was evidence that the Appellant had shown some interest in one of those roles in terms of making a phone call to Clare Hathaway, who sent an email about the position to the Appellant on 20 June 2008.
  13. At that stage it is necessary for us now to set out some of the history of the claim which we take from Ms Palmer's submissions. It was clear from Ms Palmer's demeanour before us that she still showed great annoyance about the manner in which Mr Stephenson had conducted the matter both below and before us on behalf of the Appellant, in terms of the Tribunal hearing raising issues at a late stage and before us raising issues that had not been argued below.
  14. The Appellant had originally brought claims of race discrimination, harassment on the grounds of race and unfair dismissal, and in part 5 of her ET1, dealing with unfair dismissal, she said this:
  15. "I have been made redundant from the above employer whilst on maternity leave and whilst I had a grievance pending."

    Her grievance had alleged bullying and harassment, but had not raised any grievance concerning the redundancy process or any complaint about suitable vacancies. Nowhere in the ET1 is there a specific allegation relating to a breach of Regulation 10, i.e. that there were suitable vacancies that should have been offered to her.

  16. At a Case Management Discussion on 19 February 2009 it was noted the claim from her dismissal would include a claim under section 99, although there was still no indication that this would be on the basis that a suitable vacancy had not been offered. On the face of it the claim was simply that the maternity leave was a reason or a factor in her being made redundant.
  17. In her witness statement, by which time she was represented by Lambeth Law Centre, the Appellant alleged that she had not been offered a suitable vacancy but did not identify any specific vacancy which she contended was suitable to her, and it was only at the outset of the hearing when the Tribunal sough to identify issues, that she was asked to identify - and did so for the first time - what posts were suitable and should have been offered to her. The bundle of documents had contained vacancy listings from which it was possible to identify the job title of all the posts that had been available in the Respondent's restructure.
  18. The Appellant had indicated a number of vacancies which were eventually reduced by the Tribunal down to eight. Of the eight the Tribunal found that four were potentially suitable, namely the Assistant Broker, Cashier, Collections Adviser and Insurance Consultant. In relation to each of the four posts there were two issues the Tribunal considered: the Regulation 10(3)(a) issue, whether the work was suitable and appropriate for her, and the Regulation 10(3)(b) issues, whether the terms and conditions including listed place of work were not substantially less favourable to her than if she had continued to be employed under her previous contract.
  19. The Insurance Consultant post was similar to her old job, although based at a call centre rather than a retail outlet. The Respondent before the Tribunal accepted that the work involved in this post was suitable and appropriate, i.e. satisfying Regulation 10(3)(a), but argued that 10(3)(b) was not satisfied because (a) the place of work was Cheltenham and, (b), the role involved working a seven-day shift, whereas her previous contractual hours were Monday to Friday office hours, with only very limited evening and weekend work. Indeed, there were issues before the Tribunal within the discrimination and harassment claims that the Appellant had objected to Saturday working.
  20. In relation to the three other posts, the Respondent disputed suitability of the work as well as contending that the terms and conditions were substantially less favourable due to the place of work being Cheltenham.
  21. The Tribunal, having reminded themselves of the statutory provisions, dealt with the issue of automatic unfair dismissal in paragraphs 10.6 to 10.8 as follows:
  22. "The automatically unfair dismissal claim. We conclude that four posts out of the eight that the Claimant said were suitable for her were potentially suitable. These were the assistant commercial broker, the cashier, the collections adviser and the insurance consultant, internet sales. The Respondent has not shown the terms and conditions related to the assistant commercial broker, whether the post was substantially less favourable in terms of salary, shifts, or otherwise. We cannot say that the post was not suitable for her or appropriate in the circumstances. The same goes for the cashier. The Respondent has not shown us, as it must do, that the terms and conditions of the post were substantially less favourable under regulation.
    Again, the same applies to the collections adviser position. So far as the insurance consultant for internet sales is concerned, then the Claimant has done this post before, albeit on the telephone. As Miss Cotton said, if the Claimant had been happy to relocate to Cheltenham, she could have done this post. When looking at whether the place of a new post is substantially less favourable from the terms and conditions of employment view point, we can take into account the individual employee's personal circumstances. Although the Claimant told us she would relocate to Cheltenham, we do not accept that evidence from her. If she had been willing to relocate to Cheltenham, why did she not apply for any job in Cheltenham at the time? Why was the only job that she did apply for in London? She did not engage with the Respondent in respect of these posts, even though she took out a grievance. We conclude, therefore, that the new contracts in Cheltenham for the four posts we have identified were either not suitable in relation to her or appropriate for her to do in the circumstances because of the relocation. Further, the place in which she was to be employed, as a term and condition of her employment, was substantially less favourable to her than if she had continued to be employed under her previous contract. So far as the insurance consultant post which was hers for the asking in Cheltenham is concerned, looked at objectively, and taking into account her circumstances, this was substantially less favourable to her in terms of place of employment than if she had continued to be employed under the previous contract. There was therefore no obligation under Regulation 10 for the Respondent to offer the post to her, and no breach of that regulation. Alternatively, there was no reason why the Respondent could not choose to test the general suitability of any of these posts - i.e. in the way set out in Regulation 10(3) - by assessment and interview, if the Claimant had shown an interest in them.
    However, if we are wrong about this and the four posts in Cheltenham we identified, as well as the post that was the Claimant's for the asking, do not represent substantially less favourable terms and conditions of her employment, and should have been offered to her, we would say this. We have to assess whether the Claimant would have at this time, in other words when the redundancies were being made in May - August 2008, relocated to Cheltenham. We do not believe that she would. We conclude that she would have refused any offer that was made to her. Therefore, it would not be just and equitable to award her compensation, even if the dismissal is automatically unfair. See Section 123(1) of the 1996 Act. She has lost nothing by the First Respondent's actions, because she would not have moved in any event."

  23. Having set out the Tribunal's findings and conclusions, as well as some of the history of the claim, we now turn to the grounds of appeal. The main ground advanced by Mr Stephenson related to what he contended was the Tribunal's erroneous approach in construing Regulation 10. The Tribunal determined that in deciding whether or not there was a suitable alternative vacancy which should have been offered to the Appellant the tests set out in Regulation 10(3)(a) and 10(3)(b) must both be satisfied. Mr Stephenson's submission was that in order to construe Regulation 10 one must bear in mind the various Council directives to protect pregnant workers and workers who have recently given birth in order to satisfy those directives. Regulation 10(3) should be construed as a two-stage process.
  24. As he put it in paragraph 25 of his written submissions:
  25. "The Claimant further contends that once subsection (2) is satisfied, i.e. a suitable available vacancy becomes or is available; she is entitled to be offered that alternative employment before the end of her employment under the existing contract of employment. In other words the onus is on the Respondent to offer any suitable alternative vacancy to the employee before entering into discussions as to whether the terms are substantially less favourable. Once offered, the employee is at liberty to accept or refuse that offer."

  26. It seems, therefore, that Mr Stephenson was submitting that Regulation 10(3)(b) is there to simply protect the employee in the course of the bargaining process once a suitable vacancy in accordance with Regulation 10(3)(a) has been offered to her. Ms Palmer argued that this was a completely erroneous approach to the interpretation of Regulation 10 and that the regulation should not be interpreted as creating a two-stage process whereby at the first stage Regulation 10(3)(a) is satisfied and 10(3)(b) then becomes part of the negotiating process. The protection for workers who are on maternity leave is that unlike others who were made redundant, if there is a suitable alternative vacancy, it has to be offered to them in preference to any other employee who is similarly affected by the redundancy situation but who is not absent on maternity or adoption leave. She argued that there can only be one offer which must satisfy both limbs of Regulation 10(3).
  27. She further raised the issue of whether this ground was raised below as an issue. It appears that there were two sets of closing submissions filed by Mr Stephenson. We have seen one dated 26 July 2009 from which it is by no means clear that he was raising the issue below that he now raises before us. He contended that there were later submissions which included this issue. We must say that we have considerable reservations as to whether this was an issue before the Tribunal, as, if it was, we feel certain that they would have dealt with it. Since it does involve an issue of interpretation and the interaction with EC law we have determined that we are willing to give it consideration.
  28. The first Council Directive is 92/85/EC of 19 October 1992 on the introduction of measures to encourage improvement in the safety and health at work of pregnant workers and workers who have recently given birth or breast feeding:
  29. "Article 1 - Purpose
    The purpose of this Directive, which is the tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding.
    Article 10 – Prohibition of dismissal
    In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that:
    1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional circumstances not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
    2. If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;
    3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1."

  30. Council Directive 2006/54/EC dealt with the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast):
  31. "Article 1 - Purpose
    The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
    To that end, it contains provisions to implement the principle of equal treatment in relation to:
    (a) access to employment, including promotion, and to vocational training;
    Article 2 - Definitions
    1. For the purposes of this Directive, the following definitions shall apply:
    (a) 'direct discrimination': where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;
    …………..
    2. For the purposes of this Directive, discrimination includes:
    ………….
    (c) any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.
    Article 15 - Return from maternity leave.
    A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.
    Article 19 - Burden of proof
    (1) Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

  32. To reinforce his argument Mr Stephenson took us to the EAT decision in Fletcher & Ors v NHS Pensions Agency & Ors [2005] ICR 1458. That case concerned whether there was unlawful sexual discrimination by reason of bursary payments paid to trainee midwives being terminated during maternity absence. At paragraph 64 Cox J, giving the decision of this court, said this:
  33. "As applied to pregnancy and maternity cases, the second limb of this definition means that treating pregnant women workers or women on maternity leave in the same way as other employees during the "protected period" (that is the start of pregnancy through to the end of maternity leave), in circumstances in which they are disadvantaged because of their pregnancy or maternity, is applying the same treatment to different situations and is therefore discrimination. In this way, the law aims to ensure substantive equality for working women, who would otherwise be disadvantaged by their pregnancy."

  34. Accordingly, Mr Stephenson submitted that in the light of the Council Directives, the Respondents, at the very least, were required to offer the Appellant the insurance consultant vacancy in Cheltenham as opposed to simply sending her the information on vacancies inviting her to reply, before entering into discussions as to whether the terms were substantially less favourable. Ms Palmer repeated the argument that since the employer's obligation is to actually offer a position if there is a suitable vacancy ahead of those employees who are not on maternity leave, the protection suggested by the European Directives are clearly met.
  35. Further, she argued that the requirement for an equivalent post set out in Article 15, which deals with the return from maternity leave, whilst it may be technically too difficult to fulfil following the employee's post becoming redundant is met as far as possible by the requirement in Regulation 10(3)(b) by the "not substantially less favourable" provision.
  36. We would agree with Ms Palmer's view. The requirement of the suitability set out in Regulation 10(2) can only sensibly be tested by the requirement that it is coupled with a new contract of employment, which complies with Regulation 10(3). To suggest that 10(3)(a) can be looked at, apart from Regulation 10(3)(b), seems to import a two-stage process into the regulation which is not apparent from its wording. The regulation itself, in our view, protects those on maternity leave in preference to those who are in fact still working and the necessity to provide an equivalent post is protected by the requirement as to term, this being not less substantially favourable.
  37. However, Mr Stephenson went on to argue that even if paragraphs 10(3)(a) and (b) have to be considered together when assessing whether the vacancy was suitable, the Tribunal were in error in adopting an approach principally from the employer's perspective and applied an objective standard rather than considering the question from the employee's point of view. He took us to a passage in Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 where Lord Scott, at paragraph 105, said this:
  38. "My only reservation is that the test of detriment as expressed by Brightman LJ in Ministry of Defence v Jeremiah [1980] QB 87 at 104, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 at 1959-1960 (see paras 33 and 35 of Lord Hope's opinion), namely, that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment", must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference constituted "detriment". He was being deprived of something that he reasonably wanted to have. And, while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance about the decision may well do so. On the facts of the present case I agree with Lord Hope that the Appellant was entitled to a finding that she was subjected to a detriment within the meaning of Article 8(2)(b) of the 1976 Order."

  39. Mr Stephenson reminded us of the evidence in paragraph 4.19 of the Tribunal's decision when referring to the grievance interview on 21 August 2008 when Miss Cotton asked the Appellant regarding vacancies, "There are few in the London area. Would you consider relocating elsewhere?" her representative, Ms Morgan, who was a friend as well as a trade union representative answered on her behalf and said:
  40. "To work remotely, yes and relocate yes. Would consider that she could be relocated in Newcastle and work in London."

  41. The Tribunal expressed concern, as we would have done, that they were not entirely clear what this meant as there was certainly no job in Newcastle. Mr Stephenson's case was that the matter should be looked at from the employee's perspective yet she had taken no action to suggest that she was willing to take up any of the Cheltenham jobs. There was, further, a specific finding, paragraph 10.7, that they did not accept the evidence that she gave that she would be willing to relocate to Cheltenham. The key passage as far as we are concerned in paragraph 10.7 is when the Tribunal said this:
  42. "So far as the insurance consultant post which was hers for the asking in Cheltenham is concerned, looked at objectively, and taking into account her circumstances, this was substantially less favourable to her in terms of place of employment than if she had continued to be employed under the previous contract."

  43. It seems to us that the Tribunal were absolutely correct to focus on an objective decision made by the employer, since under the regulations there is no requirement on the employee to actually engage in this process, although clearly the employer would have to consider what it knew about the employee's personal circumstances and work experience. It seems to us that at the end of the day it is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable. Ms Palmer suggested this places a very difficult task on employers when deciding, for example, whether or not to offer a more senior post to an employee who is on maternity leave. The Tribunal, at the end of paragraph 10.7, suggested that there was no reason why the Respondent could not choose to test suitability by assessment and interview. The IDS Handbook on Redundancy, at page 106, sets out the position thus:
  44. "To a large extent, this puts an employee away on maternity or adoption leave in a far more advantageous position than if she were at work, since it may be that, had she been at work, she would not have been offered one of the available alternative jobs in preference to other more highly qualified candidates."

    We are by no means satisfied that an employer could choose to test suitability by assessment and interview.

  45. Finally, Mr Stephenson has argued in written submissions that the reasons given by the Tribunal were inadequate and in particular fail to explain how they arrive at the conclusion that the Claimant would have refused any offer made to her. Alternatively, that such a decision was perverse. The Tribunal gave very clear and specific reasons as to why the Appellant would not be willing to locate to Cheltenham: (1) that she had not applied for any job, (2) the only one that she had shown any interest in was in London and, (3), that despite lodging a lengthy grievance she had not engaged with the employer in respect of any of these posts. Needless to say the Tribunal also had the advantage of hearing from her and they were entitled, in our view, to come to the conclusion, having heard from her, that she would have not wanted to move.
  46. In the cross-appeal Ms Palmer complains about the passage at the end of paragraph 10.6 which stated that:
  47. "The Respondent has not shown us, as it must do, that the terms and conditions of the post were substantially less favourable under regulation."

    She argued that under the regulations the burden was clearly on the Claimant to show that a suitable vacancy existed which satisfied the two requirements in Regulation 10(3), not on the Respondent to show the contrary. Moreover, she submitted there was no provision for a reverse burden of proof in Regulation 10, nor was there any case law suggesting that such a reverse burden exists. Whilst a claim under section 99 will often give rise to a claim for sex discrimination as well, in which case the shift in burden will apply to the claim for sex discrimination, it should not apply to a claim under Regulation 10, which is effectively a claim for automatic unfair dismissal.

  48. Mr Stephenson responded that it was the employers who have access to the information to determine whether a post is available and/or suitable in the first instance, as opposed to the employee who was likely to have been absent from work for a prolonged period and was less likely to have all the requisite information and argued that having regard to the underlying objective of the regulations it must follow the burden of proof should fall upon the employers when seeking to prevent a working mother from returning to work. Ms Palmer argues that had the Appellant pleaded her case properly then issues of suitability would have been dealt with by full disclosure and in fuller evidence by Miss Cotton, the HR Director.
  49. Mr Stephenson also argued that the reverse burden of proof provisions should apply to Regulation 10, arguing that under the reverse burden of proof provisions in Article 19 the reverse burden is said to apply where there is direct or indirect discrimination, and under Article 2, discrimination can include any less favourable treatment of a woman related to pregnancy or maternity leave.
  50. This issue was certainly not raised below and we only heard brief argument in the hearing before us in addition to the written submissions.
  51. Since we propose to dismiss the appeal, there is no need for us to deal with the cross-appeal. Certainly on the face of the regulations there is nothing to suggest that there is a reverse burden of proof and, as we have indicated already, a breach of Regulation 10 gives rise to a finding of automatic unfair dismissal and not sex discrimination.
  52. However, on the main appeal we are satisfied the Tribunal did come to the correct decision and, accordingly, that appeal is dismissed.


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