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Chambers & Partners
31/07/2005

Calor Gas Ltd v. Bray

Uncategorized

Employment Appeal Tribunal

BIAS : CONSULTATION : MATERNITY LEAVE : REDUNDANCY : SEX DISCRIMINATION : UNFAIR DISMISSAL : CONSULTATION PERIOD DURING MATERNITY LEAVE : reg.10 MATERNITY AND PARENTAL LEAVE ETC. REGULATIONS 1999 : reg.7 (5) MATERNITY AND PARENTAL LEAVE ETC. REGULATI
 
An employment tribunal had erred in holding that, pursuant to the Maternity Leave and Parental Leave Regulations 1999 reg.10, the consultation period in a redundancy situation would be automatically extended until the employee returned to work. The tribunal had also displayed a hostile attitude towards the appellant employer to the extent that there had not been a fair hearing.

The appellant employer (C) appealed against a decision of the employment tribunal that the respondent employee (B) had been unfairly dismissed. C had merged two offices which had resulted in compulsory redundancies and B had been made redundant whilst on maternity leave. During the consultation process, B had discussed alternative employment possibilities with C including her request to be considered for a driver's role which would require training. C had suggested an immediate trial for the role but B had declined the proposal on account of the travelling required to reach the training centre. The tribunal found that B had been automatically dismissed because during her maternity leave she had not been offered suitable alternative employment which had been available to her. C submitted that (1) the tribunal had erred in law by holding that, pursuant to the Maternity and Parental Leave etc. Regulations 1999 reg.10, the redundancy consultation period at which time suitable alternative vacancies would be considered would be automatically extended until the employee returned to work; (2) the tribunal had erred in finding that C had discriminated against B by not offering her a driver's role after requiring C to withdraw evidence on that issue; (3) the tribunal's ruling which prevented cross-examination of B about her child care arrangements had been totally unjustified; (4) the tribunal had been overwhelmingly hostile to C in a manner that went significantly beyond the normal dialogue and exchange of views between a tribunal and the parties.

HELD: (1) The approach of the tribunal as regards reg.10 should be firstly to consider whether or not it was practicable by reason of the redundancy for the employment to continue. That would involve the employers satisfying a tribunal that it would be necessary to implement the redundancy during the period of maternity leave. The tribunal would then have to determine when the existing contract of employment would be terminated and determine whether a suitable alternative vacancy was available to the employee prior to the termination of her existing contract of employment. The normal consultation period might have to be extended because of the special circumstances involved in the employee's maternity leave and the ability to come to a decision about the alternative proposals in the light of the fact that the employee was not actually working at the time. However, in the absence of any specific finding that the need to implement the redundancy could be postponed until the employee returned to work, it could not be accepted that the proper interpretation of reg.10 would mean that the consultation period during which time suitable alternative vacancies could be considered would automatically be extended until the employee returned to work. Regulation 7(5) reinforced that view. The tribunal's error regarding the extension of the consultation period may have clouded their views as regards the reasonableness of C's approach concerning their proposal in relation to the driver's role. (2) The tribunal had erred in indicating that the discrimination issue would be withdrawn, thereby preventing C from calling evidence only to re-introduce it as a factor in relation to their decision as to sex discrimination in their reasons. (3) Bearing in mind the issues in the case, there was nothing wrong with the questions that counsel was seeking to ask B regarding her child care arrangements. (4) The tribunal chairman had frequently interrupted cross-examination and had expressed criticism of the questions put to the witnesses. It was clear from a close analysis of the interventions that had taken place that the tribunal had overstepped the line in such a way that an impartial observer to the proceedings would be left with a clear impression that C had not had a fair hearing.
Appeal allowed.
Counsel:
For the appellant: D Panesar.

[2005] All ER (D) 54 (Sep), EAT PA/1133/04DZM
bray.pdf
EMPLOYMENT, BIAS, CONSULTATION, MATERNITY LEAVE, REDUNDANCY, SEX DISCRIMINATION, UNFAIR DISMISSAL.

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