United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BHAYANI Representative
For the Respondent	MR S MOON Representative IRPC Group Ltd 83 High Street Great Barford Bedfordshire MK44 3LF


 


JUDGE A WAKEFIELD

1. This is an appeal by Mrs S Bhayani against the dismissal by Bedford Employment Tribunal sitting on 1 December 1999 of her applications relating to alleged unfair dismissal and sexual discrimination by the Respondent.
2. By virtue of the Decision of a preliminary hearing at this Tribunal, the grounds of appeal are limited to those three which are set out in a substitute Notice of Appeal, filed at the Tribunal on 6 December 2000, namely:

"1. Warnings, consultation or consideration for alternative employment should have taken place either before her maternity leave (when the redundancy situation, if true, must have been obvious) or at the latest during her absence. By notifying her late upon her return to work the Respondent materially prejudiced Mrs Bhayani's procedural rights and her ability to be considered for alternative employment positions filled in the interim.

2. The Tribunal erred in law by failing to consider the importance of such timing, and in particular failing to consider whether the Respondent had discriminated on grounds of sex and/or had acted contrary to section 99 by not consulting her during her maternity leave.

3. Further, the Tribunal entirely failed to seek to apply section 77(2). The case of Community Task Force [1986] IRLR 203 shows that the test is a strict one. The Tribunal did not investigate whether the Appellant could have undertaken the work now done by Lucy Gorringe (at least until the new post became available 3 months later)."

3. Having considered carefully the reasons given for the Employment Tribunal's Decision and the submissions made today on behalf of both parties, we find no flaw in that Decision as regards the alleged sex discrimination nor as regards the finding that the reason for the dismissal was that the Appellant was redundant.
4. Our concern, however, is that the Employment Tribunal may have been in error in finding that the Respondent had properly consulted the Appellant prior to the dismissal and that there was no suitable alternative vacancy at the relevant time.
5. The chronology of the events is important here. The Appellant went on maternity leave on 9 February 1999 and returned to work, following an illness after giving birth, on 19 April 1999. On that latter date, as the Employment Tribunal found, she was told that her position was being made redundant.
6. The decision of the Respondent which had led to that situation, had been taken at some time during the maternity leave. There was evidence before the Employment Tribunal as to that date, but there were no specific findings by them.
7. Although the Employment Tribunal referred, almost in passing, to section 77 of the Employment Rights Act 1996 (the relevant provision then in force), they do not appear to us to have properly considered the relevance of that section as regards a need to consider suitable available vacancies, not just on 19 April but during the period to that date from the time of the decision to make the Appellant's position redundant.
8. This failure, which also impacts on the Employment Tribunal Decision as to fairness under section 98, appears to us to be a flaw in the Decision. We are not in a position to reach any conclusions as to whether any suitable available vacancy occurred in the relevant period, nor as to any effect on the decision of the Respondent to dismiss the Appellant which would have resulted from a proper consultation during that period.
9. In those circumstances we consider that the case should be sent back to the Employment Tribunal for further consideration, limited to the claim as to unfair dismissal and as to what occurred as regards vacancies, and what should have occurred as regards consultation, in the period between the taking of the decision which resulted in the Appellant's job being made redundant and the Appellant's return to work on 19 April.