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In the case of Ms Jenna Storie v Clyde Property Ltd: S/4100303/2017, the Employment Tribunal awarded the Claimant, Ms Storie, the sum of £26,461 after finding that the Respondent had automatically unfairly dismissed the Claimant by breaching Regulation 10 of the Maternity & Parental Leave Regulations 1999.  The case divided the Tribunal, with the Employment Judge expressing a minority view that the Claimant’s dismissal was fair.

The facts in Ms Jenna Storie v Clyde Property Ltd: S/4100303/2017

The Claimant was employed as a financial controller in the Respondent’s accounts department on a salary of £40,000.  Her sister Ms McCulley was employed as financial director, a position of greater seniority, and a marginally more junior role was filled by David Dunwoodie.  During Ms McCulley’s maternity leave, the Claimant undertook some of her duties, but in the main, her responsibilities were similar to those of Mr Dunwoodie.

On 14 June 2016, the Claimant commenced a period of maternity leave. She negotiated with Mr Thomson, the Managing Director, to be paid an enhanced maternity pay of 90% of basic salary for 6 weeks followed by a further 46 weeks based on an annual salary of £22,000.

In July 2016, a consultant report commissioned by Mr Thomson in April 2016 was produced which identified a six-stage process by which to improve the efficiency of the accounting function. On the basis of this, he decided to restructure the accounts function by removing the roles of Financial Director, Financial Controller and Accountant and replacing them with one Senior Financial Controller role. The role sat below that of Ms McCullen but above that of the Claimant and that of Mr Dunwoodie and attracted a salary of £50,000.

All three individuals were notified of the risk of redundancy on 1 September 2018. Mr Thomson did not consider the Senior Financial Controller role to be a suitable alternative vacancy and therefore he did not offer this role to the Claimant.  However, during the course of the consultation process, the Claimant expressed an interest in applying for this role.  She and Mr Dunwoodie were both scored using a selection matrix and as the Claimant scored lower, the role was offered to Mr Dunwoodie.

Thereafter, the Claimant was given the opportunity to apply for the more junior role of Accounts Assistant and was told she would again need to be scored against a selection matrix. The Claimant was told that is she was successful in gaining the Accounts Assistant role, her maternity pay would be half the salary for that position until she returned to work. The Claimant asked for more time to consider and after various unsuccessful attempts by Mr Thomson to get the Claimant to confirm what she wanted to do, he terminated her employment on 4 October 2016 by reason of redundancy.

The decision of the Employment Tribunal

The Claimant believed that she had been dismissed because she was on maternity leave.  The Respondent argued that it was a genuine redundancy.  The ET considered the requirements of section 139 of the Employment Rights Act 1996 and asked themselves the following three questions to decide, on the facts available to them, that there was a genuine redundancy situation:

  1. Was the employee dismissed?
  2. Had the requirements of the business for employees to carry out work of a particular kind ceased or diminished?
  3. Was the dismissal of the employee caused wholly or mainly by the state of affairs identified at stage 2 above?

The Tribunal then considered whether the role of Senior Financial Controller was a suitable alternative vacancy within the meaning of Regulation 10 of the Maternity & Parental Leave Regulations 1999.  It reminded itself of the following considerations:

  1. If there is a suitable alternative vacancy which is available, then the entitlement is not subject to a test of reasonableness or competition, such as a scoring exercise or interview process; and
  2. Whether or not an alternative vacancy is suitable requires an assessment on the part of the employer and the Tribunal’s role in reviewing this is to consider matters from the perspective of an objective employer.

The Tribunal considered the tasks of the role of Senior Financial Controller and noted that the Claimant has previously performed some of these. Two members of the Tribunal concluded on the facts that the post of Senior Financial Controller was a suitable alternative vacancy in terms of Regulation 10, and accordingly it had to be offered to the Claimant as she was on maternity leave at the time of the redundancy. These two members made this decision as they did not consider the difference in the role to be so great that the Claimant could not have performed it.  As such, the Claimant was entitled to be offered that role and the Respondent`s failure to do so was a breach of Regulation 10, which rendered the dismissal automatically unfair.

The Employment Tribunal Judge disagreed on the basis of the requirements of Regulation 10 that the alternative vacancy must be both suitable in relation to the employee and appropriate for her to do in the circumstances. On the facts, the judge concluded that the Senior Financial Controller post was not suitable and there was therefore no breach of regulation 10.

The judge then considered the fairness of the dismissal.  The Claimant asserted that she had been scored less than Mr Dunwoodie because she was on maternity leave. The judge disagreed, making the following points:

  • Selection criteria for the scoring matrix had been drawn up with a mix of subjective and objective considerations;
  • Three consultation meetings were held with the Claimant;
  • There was no evidence that the Claimant scores were less because she was on maternity leave.

The judge thought that Mr Thomson gave sufficient explanation to justify the scores given to the Claimant and Mr Dunwoodie and therefore she concluded the selection of the Claimant was carried out fairly in accordance with the scoring process.

Our solicitors’ comments on Ms Jenna Storie v Clyde Property Ltd: S/4100303/2017

Rana Tandon, a senior associate in the employment team at Redmans, commented on the case: “This case is an interesting analysis of the process used by the Employment Judge in reaching a dissenting conclusion and can help inform the conduct of both Respondents and Claimants who find themselves in a similar position.”

The decision of the Employment Tribunal in Ms Jenna Storie v Clyde Property Ltd: S/4100303/2017 can be found here

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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