The claimant was dismissed during her maternity leave, purportedly by reason of redundancy. It was her case that the redundancy was a sham and her dismissal was less favourable treatment because of sex and/or unfavourable treatment because of pregnancy or maternity; alternatively, if there was a redundancy, the dismissal was unfair for the purposes of section 99 Employment Rights Act 1996 (“ERA”). Rejecting those claims, the Employment Tribunal (“ET”) found that regulation 20(1)(b) of the Maternity and Parental Leave etc Regulations 1999 (“MAPLE”) did not apply as there was no suitable alternative vacancy for the purposes of regulation 10. Although finding that the burden of proof had shifted to the respondent under section 136 Equality Act 2010 (“EqA”), the ET rejected the claimant’s contention that the redundancy had been a device to get rid of her and dismissed her claims of discrimination. The claimant appealed.

Held: allowing the appeal

As both parties agreed, in the particular circumstances of this case, the ET was required to satisfy itself that there was a genuine redundancy situation for the purposes of section 139 ERA. That was a necessary step in determining the claimant’s claim of unfair dismissal under section 99 ERA; although it might be possible to proceed straight to the question of suitable alternative vacancy in some instances (assuming that the dismissal was by reason of redundancy), the facts of the present case gave rise to a potential overlap between the assessment of suitability and the determination of redundancy, as defined by section 139. As for the claims under the EqA, having found that the burden of proof had shifted under section 136 EqA, the ET had to determine whether the respondent had demonstrated a non-discriminatory explanation for its treatment of the claimant. In this case, the respondent had specifically relied on what it said was a redundancy (as that term is defined under section 139 ERA) in respect of the claimant’s post; something the claimant said was a sham. As was common ground on the appeal, in these circumstances, the ET was required to engage with the question whether there had in fact been a redundancy for the purposes of section 139 ERA; it had failed to do so. Given the particular issues raised in this case - involving the introduction of a new role, into which the claimant’s position was to be subsumed - the question whether there was a genuine redundancy could not be answered as a matter of impression, and the ET’s failure to engage with this issue rendered its decision unsafe.

[Summary reproduced from the EAT judgment]