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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Simpson v Endsleigh Insurance Services Ltd & Ors  UKEAT 0544_09_2708 (27 August 2010)
Cite as:  ICR 75,  UKEAT 0544_09_2708
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|At the Tribunal|
|On 27 July 2010|
HIS HONOUR JUDGE ANSELL
MR T MOTTURE
MR P SMITH
(2) MISS C WOOD
(3) MISS M THOMPSON
(4) MISS A COTTON
Transcript of Proceedings
|For the Appellant||MR DAVID STEPHENSON
London Discrimination Unit
11 Mowll Street
|For the Respondents||MS ANYA PALMER
Messrs Osborne Clarke Solicitors
2 Temple Back East
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
"Employment Rights Act 1996
(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."
Facts and History of Claim
"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."
"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.
"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."
"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."
"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."
"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."
"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."
"My only reservation is that the test of detriment as expressed by Brightman LJ in Ministry of Defence v Jeremiah  QB 87 at 104, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan  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."
"To work remotely, yes and relocate yes. Would consider that she could be relocated in Newcastle and work in London."
"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."
"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.
"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.