Case Background

The Claimant was employed as a Curriculum and Support Manager in the 14-19 team of the Children and Young People’s services department (CYPS). She commenced a period of maternity leave and was still on maternity leave when she was dismissed the following year. Whilst the Claimant was on maternity leave the Respondent re-structured the CYPS, which involved the replacement of the existing staff structure with a new one.

The Respondent used a process of assimilation and ring-fencing to put some staff members in posts within the new structure and made others compulsorily redundant. The Claimant was ring-fenced for a teaching position, which the Respondent conceded was not a suitable alternative vacancy pursuant to Regulation 10 of the Maternity and Parental Leave Regulations 1999 (the ‘Regulations’). As such, when she declined to take up the position she was made redundant. Throughout the restructure and redundancy process there was little consultation. Despite this the Claimant, through her trade union, sought to bring to the Respondent’s attention that whilst her job had been displaced under the new structure she was capable of performing some of the new roles and that, in accordance with the Regulations, she should be given one of these roles in preference to other employees.

The Respondent took the view that these new roles were never available or vacant as there had been assimilation/ring-fencing for employees whose positions were materially identical or closely matched to their old posts. This led to the Respondent’s belief that there was no requirement to consider the Claimant for the roles. In the alternative they sought to argue that the Claimant would not have been suitable for these roles and/or that other employees were more suitable for the roles. The Claimant’s claim consisted of a claim for automatic unfair dismissal and sex discrimination.

The key issues for the tribunal to determine were: 1) did any of these roles constitute vacancies; and 2) if they were vacancies, were they suitable for the Claimant. The tribunal found that it was clear that the Respondent knew that the Claimant’s existing post was to be dispensed with and that she was at risk of redundancy before they made decisions about allocation of posts in the new structure, including the posts in issue. As such, there were vacancies and the Claimant should have been considered ahead of other employees who were not afforded protection under the Regulations. Whilst other employees may have been more suitable for the roles this was not test under the Regulations. The fact of the matter was that the Claimant would have been suitable for two of the roles. Further there had been a failure to consult, part of which was due to the Respondent taking a conscious decision not to involve the Claimant as she was on maternity leave. The Claims of automatic unfair dismissal and sex discrimination succeeded.

Contributors Comments

This case is of particular importance given that many local authorities use assimilation and ring-fencing in redundancy situations. Despite their frequency there are little, if any, reported decisions looking at whether this is a fair mechanism. The reasoning behind the finding that there were vacancies before the assimilation/ring-fencing process took place is relevant to cases involving ordinary unfair dismissal (in particular where there is a failure to consult) and potentially as regards the need to make reasonable adjustments. The case also provides assistance in relation to considering whether a vacancy is suitable where suitability was not considered by the Employer at the time. The tribunal stated as follows:

‘The Respondent now says that it does not consider that the vacancies were suitable, and refers us to the case of Simpson v Endsleigh Insurance as authority for the proposition that it is for the employer to decide whether or not a vacancy is suitable… we are therefore invited to accept the Respondent’s ex post facto assessment as to suitability. As there is no contemporaneous decision as to the suitability of the posts for the Tribunal to review the Tribunal can only, therefore, make its own objective assessment of the matter-taking account, of course, of the Respondent’s ex post facto views.’

The proposition to be taken from this case is that ring-fencing/assimilation is not necessarily an easy shortcut through the redundancy process and that further consideration and consultation will be required in most situations.