Employment Cases Update

Hulley & Kirkwood Consulting Engineers Ltd v Marston UKEAT/0078/13/RN

Date published: 24/02/2014

Appeal against findings of unfair dismissal and sex and maternity discrimination. Appeal allowed and remitted to a fresh Tribunal to be heard again.

The claimant was on maternity leave in 2011 when she was made redundant. The Employment Tribunal found that she was unfairly dismissed and that she had been discriminated against by reason of her sex and because she was on maternity leave. The respondent appealed on the basis that the ET had: 1) failed to give reasons for its decisions; 2) had substituted its own judgment for that of the respondent; 3) had failed to explain what discriminatory acts that it had found; and 4) had failed to apply the law in regard to the burden of proof.

The EAT allowed the appeal. The ET's judgment did not comply with rule 30(6) of the Employment Tribunal rules and the reasons were not Meek compliant. 

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Appeal No. UKEAT/0078/13/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE

At the Tribunal

On 20 September 2013

Judgment handed down on 21 February 2014

Before

THE HONOURABLE LADY STACEY, MS G MILLS CBE, MR M WORTHINGTON

HULLEY & KIRKWOOD CONSULTING ENGINEERS LTD (APPELLANT)

MARSTON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR STEPHEN HARDY (of Counsel)

Instructed by:
Pinsent Masons LLP
141 Bothwell Street
Glasgow
G2 7EQ

For the Respondent
MR GARETH CHEETHAM (of Counsel)

Instructed by:
Plexus Law Solicitors
Vale Chambers
110-114 High Street
Evesham
Worcestershire
WR11 4EJ

SUMMARY

UNFAIR DISMISSAL

MATERNITY RIGHTS AND PARENTAL LEAVE - Unfair dismissal

Unfair dismissal, sex and maternity discrimination. The Claimant was employed by the Respondent from 2006 to 2011. The Respondent claimed that she was redundant and dismissed her at a time when she was on maternity leave. The Employment Tribunal found that she was unfairly dismissed and that she had been discriminated against by reason of her sex and because she was on maternity leave. The Respondent appealed on the basis that the ET had failed to give reasons for its decisions; had substituted its own judgment for that of the Respondent; had failed to explain what discriminatory acts that it had found, and had failed to apply the law in regard to the burden of proof.

Held: the ET had erred in law by failing to give adequate reasoning for its decisions. The case it will be remitted to a fresh Tribunal to be heard again.

THE HONOURABLE LADY STACEY

Introduction

1. This is a case about unfair dismissal, sex and maternity discrimination, and victimisation and unfair redundancy. We shall refer to the parties as the Claimant and Respondent as they were in the Tribunal below.

2. This appeal is against a judgment of the Employment Tribunal, chaired by Employment Judge Lloyd at Birmingham, sent to the parties with reasons on 31 May 2012. The Claimant was represented at the ET and before us by counsel, Mr Cheetham. The Respondent was represented at the ET and before us by counsel, Mr Hardy.

3. The Claimant claimed that she had been unfairly dismissed, had suffered sex discrimination and victimisation and race discrimination and victimisation. She abandoned the claim of race discrimination and victimisation and so we say no more about it. The Respondent contended that the Claimant had been dismissed fairly for reasons of redundancy and had not been discriminated against.

The issues

4. The ET set out the essential issues at paragraph 1.4 as follows: –

(a) was there a legitimate redundancy?

(b) if so was it a compulsory redundancy or did the Claimant "volunteer" to end her employment?

(c) was the consultation, selection and termination procedure conducted in a fair manner by the Respondent?

(d) did the Respondent properly consider suitable alternative work for the Claimant?

(e) if the Claimant succeeds was there contributory conduct and/or is there a Polkey reduction?

5. The ET decided unanimously as follows: –

1. The Claimant was unfairly dismissed contrary to the general principles of fairness at S.98(4) ERA 1996 and also in breach of the provisions of s.99 and s.47C of the said Act. The effective date of dismissal was 30 June 2011.

2. The Claimant has proven her case of discrimination for the protected characteristics of pregnancy and maternity and of sex (gender) pursuant to the Equality Act 2010.

3. The Respondent was in breach of the provisions of the rules 10 & 20 of The Maternity and Parental Leave etc. Regulations 1999.

4. The claim of race discrimination is dismissed following its formal withdrawal by the Claimant.

5. We make no finding of contributory conduct against the Claimant.

6. We adjourned the termination of the issue of a Polkey reduction as a preliminary to the remedy hearing as well as the Respondent's application to amend the ET 3 and any issue of uplift of compensation for breach of procedure.

6. Thus the ET found that the Claimant had been unfairly dismissed both under s.98 and s.99 of ERA and that she had been discriminated against in terms of the Equality Act 2010 and under the Maternity and Parental Leave etc. Regulations 1999.

7. At a hearing under rule 3(10) HHJ Peter Clark allowed the appeal to go to a full hearing, on the following basis: –

"I have allowed this appeal through to F H, principally on Meek grounds. The format does not comply with R. 30(6).

Following on, there is no reasoned explanation for the finding (paragraph 5.2) that dismissal was pregnancy/maternity related.

I indicated that appellant is weak on ordinary UD. I left it in because if the Meek challenge succeeds it may all have to be reheard.

NOT an appropriate case for Burns/Barke."

Background

8. The Claimant worked for the Respondent from May 2006 until 30 June 2011. Her job title at termination was "National Marketing Manager." She claimed in her form ET1 that she was unfairly dismissed and was discriminated against on grounds of sex. The Respondent had 11 offices situated out throughout Great Britain. The Claimant worked in the Respondent's Birmingham office and her role covered marketing for all of the offices. She stated in her form that her marketing activities began to reduce and from March 2010 she began to assist the administration team in the Birmingham office, particularly in the preparation of tender documentation. The Claimant went on maternity leave in August 2010. On to March 2011, while still on maternity leave, she received an email from the Respondent inviting her to a meeting with Mrs Reid, HR manager and Mr Costello, her line manager.

9. The Claimant's position was that at the meeting Mr Costello told her that due to lack of marketing tasks carried out in the last 12 months, her position was redundant. She was offered two other posts but she considered both of them to be wholly unsuitable, one because it was situated in Bristol which was too far for her to travel and the other because it involved a reduction in salary of several thousand pounds. Further the post did not reflect her qualifications.

10. According to the Respondent, in its form ET3, trading conditions had been difficult from 2009 onwards and it had decided that it required to reduce costs and staff. One engineer was made redundant in the Birmingham office in 2010. Following a review in October 2010 the Respondent decided that a number of offices needed to reduce costs and staff further. In February 2011 the managing director asked for volunteers for redundancy. The board of the Respondent met in January and in February 2011. It took the view that there was no longer a need for a marketing manager, due to lack of work. Consequently Mrs Reid, the HR manager sent the Claimant an email on 2 March 2011 asking her to attend a meeting on 9 March 2011. Mr Costello and Mrs Reid told the Claimant that there was a proposal to make her role of marketing manager redundant. She was offered two alternative positions, one in Bristol and one in Birmingham. By an email dated 16 March she said she did not wish to take the job in Bristol because of the travel time involved. She stated she would have preferred a part-time post but understood that none was available. The Claimant did not wish to take the job in Birmingham as it was beneath her qualifications and there was to be a reduction in salary. She confirmed that she would complete her maternity leave and then take a redundancy package.

11. Thus it is clear from the initiating forms lodged by the Claimant and Respondent, and by the issues which were identified by the parties and set out by the ET, that the matters in contention related to the Claimant being made redundant when on maternity leave. The ET made decisions as set out above. As was identified at the hearing under rule 3(10) the reasons given for those decisions do not comply with the guidance set out in the case of Meek. We have decided that the failure to comply amounts in this case to an error of law.

12. The judgment of the ET has two sections in which it makes findings in fact. We did not find it particularly easy to follow what findings the ET had actually made. Finding 5.1 is in the following terms: –

"We find that there was a redundancy situation at the Respondent born of the very tough commercial conditions in the construction industry from about 2009 and the Respondent's need for business rationalisation and the cutting of overheads. We do not dispute that in such a recessionary climate the financial situation of the Respondent became very serious during in 2010."

The ET has found that the financial situation of the Respondent was such that it required to carry out business rationalisation and to cut overheads. Presumably for that reason, the ET found in paragraph 5.2 that: –

"The potentially fair reason for the Claimant's dismissal was redundancy."

The ET goes on however in paragraph 5.2 to state the following: –

"Equally, we think that the Claimant had been written off by the Respondent as a member of the staff infrastructure almost from the time she started her maternity leave. It is disturbing to note from the Respondent's own evidence that the Claimant's post was deleted from the company's budget for the year beginning on July 2011, at the board meeting of 25 February 2011. We find that amounted to pregnancy and maternity discrimination under S 18 Equality Act 2010, and also we say breaches of regulations 10 and 20 MAPLE 1999. As an extension to that, we also find that Mr Cheetham succeeds in his argument that this is also an automatically unfair dismissal under S 99 ERA 1996."

The ET has therefore under the heading "Findings" found that there was a "redundancy situation" at the Respondent's business, and then without making any other findings in fact has found that the dismissal by reason of redundancy of the Claimant was a breach of S.99 ERA 1996 and S.18 of Equality Act 2010 as well as regulations 10 and 20 of the 1999 regulations.

13. In the next paragraph, 5.3, the ET finds that the dismissal was unfair under S.98(4) ERA 1996. It finds that the Respondent acted in a manner which was procedurally and substantively defective. In the findings which follow, the ET found that the work carried out by the Claimant prior to her going on maternity leave was a full-time post. They found that Mr Costello conceded in his evidence that her pure marketing post had not become redundant by 11 January 2011. They found the following at paragraph 5.4: –

"We regret to say that, as a woman on maternity leave she became a sitting target which would help to appease the board's assessed for costs savings. She was 'out of sight' and to easily did she become 'out of mind' as far as the Respondent was concerned."

At paragraph 5.5 the ET found the following: –

"The Respondent, by the decisions of Mr Costello and Mrs Reid, eagerly grasped that the illusion (and no more than that) that the Claimant was no longer needed largely because of her absence from work because of her pregnancy. That illusion was intensified by the action of Mr Costello in transferring to his home office of Glasgow the key parts of the Claimant's marketing job which he knew required regular attention. Ms McGinley's deployment in the office next door to his in Glasgow may have been convenient for him, but it was mere window dressing to the notion that the Claimant's function had reduced to minimal and in truth Mrs (sic) McGinley had great difficulty in carrying many of the Claimant's tasks which were hived off to her."

The ET came to deal with its acknowledgement that a redundancy situation existed in its paragraph 5.6. It is stated as follows: –

"Albeit we acknowledge that a redundancy situation existed for the reasons we have found at 4.1 (c), it was wholly unfair and procedurally inept to treat the Claimant as a pool of one and therefore the automatic and inevitable choice as a redundancy. The Claimant's role prior to her maternity leave was marketing focused on the administrative section of the Birmingham office. She was in reality a multi -tasker capable of handling local and group work of pure marketing but also of an administrative nature; specialist and generalist. The Claimant's tendering work was commissioned not only by Birmingham but at least one other of the Respondent's offices as well. She was in our view a very valuable resource in her evolved role, locally and nationally. Her actual position we find was such that she should have been pooled with the other 2 administrative employees at the Birmingham office. The Respondent never at any stage considered the establishment of a pool. It never entered the minds of Mr Costello and Mrs Reid. It was definitely should have done. Mrs Reid as the HR professional should have initiated that thinking even if Mr Costello had not initially considered that. The somewhat bitter irony was that those 2 employees each sought and were granted voluntary redundancy. The Claimant should not have been selected for redundancy in the circumstances if the principles were applied. The Respondent failed to follow its internal redundancy policy.…"

It may be that the ET found that the Respondent's requirement to reduce costs and rationalises business was not carried out in a way which was fair but that is hardly clear from the findings that are made. We are led to that conclusion by the terms of paragraph 5.9, as follows: –

"We regret to say that we have found the Respondent's evidential case to be singularly unimpressive. The evidence of the, now, Industry Director Jim Costello and Julie Reid the HR manager only serve to lead us to the conclusion that the Claimant had been offered up as a sacrifice to the board of directors' call for savings. The procedural approach of the Respondent to the Claimant and her future and the company was quite disturbing to say the least and the Respondent's witnesses have attempted to defend the indefensible. The Tribunal determinedly try to avoid the use of clichés in its analysis of the position in which the Claimant found herself at the beginning of 2011 in the midst of her maternity leave. But the conclusion that she was "ambushed" at the meeting on 9 March 2011 and "airbrushed" from the Respondent's corporate structure that is irresistible because it is so apt to describe what happened. That was a "done deal" at the very latest from the decision of the board on 25 February following the proposals of Mr Costello and Mrs Reid. We did not accept that selection was the Field outcome of a balanced review of group functions. In the Claimant's case it was an easy fix in the circumstances not only of her maternity absence (though that we believe was very visible factor) but in part also because Mr Costello had historically held the somewhat dismissive view of the Claimant's marketing function."

The ET go on in the rest of paragraph 5 of the reasons for their decision to criticise the methods by which the Respondent went about making the Claimant redundant. They close the section at paragraph 5.15 in the following terms: –

"It is not disputed by the Claimant that for about 12 months or so prior to her maternity leave, when the actual sales and marketing work had decreased (she says because of Mr Costello's lack of interest and failure to involve her) she had been doing 35% to 50% administration preparing European standard (OJEC) tendering documents. This was not low-grade routine administrative work but quite complex and technical procedural work. She had proved a big help to Karen Lewis during this time. The Respondent simply cannot criticise her for doing this work without formal permission. It was definitely not the case we saw it. Jim Costello and other senior people must have known what she was doing and it was a big help to the office. Moreover she was working to full capacity. It probably illustrated a strong rationale for combining her sales and marketing role with an administrative role – which in our view is what they should have done rather than make her redundant and attempt to fob her off with significantly reduced terms and conditions were continuing to do both jobs; marketing and complex administration."

14. The ET have a section, paragraph 6, which is headed "Further Findings". It is not clear to us of why this is a separate section from paragraph 5. It appears to contain the views of the ET on some of the evidence led before it but much of it cannot be described as findings in fact. For example paragraph 6.2 is in the following terms: –

"We were quite uncomfortable about the quality and credibility of the evidence of Mrs Reid and Mr Costello. On their own evidence we felt they were making some amazing concessions of how lacking in fairness the whole process of the Claimant's redundancy had been conducted by them. Mr Cheetham described this claim is a complex case – having had the full evidence we largely agree with that view."

We cannot find any clear explanation of what the "amazing concessions" were. In paragraph 6.4 the ET refer to "Karen and Jane's departure" without indicating who these people are and the circumstances and relevance of their departure.

15. At paragraph 6.5 the ET gives its view about the procedure which Mr Costello and Mrs Reid used in March 2011 by saying the following: –

"But even more than that analysis, we see that the "procedure" which Mr Costello and Mrs Reid used in March 2011 to engage with the Claimant was nothing short of entrapment. She was invited to the meeting with an email talking "waffle" about discussing the future of her place within the company, whereas there was absolutely no doubt qualification in their minds after the board meeting of 25 February 2011; namely they were axing her job from 31st May 2011 – until they realised the implication of maternity leave point."

The ET gives its view of the Respondent's claim that the Claimant had agreed to take a redundancy package in its paragraph 6.8 which is in the following terms: –

"Make no mistake, this was a decision by the Respondent and we think an unfair one which was imposed on the Claimant whether she liked it or not. And she most definitely did not like it."

16. Section 7 of the reasons is a summary of the decision and adds nothing further in terms of findings in fact or reasons.

17. The grounds of appeal on behalf of the Respondent are that the reasons given by the ET are inadequate applying the test set out in the case of Meek v Birmingham D C [1987] IRLR 250. Thereafter, the Respondent asserts that the ET has misconstrued sections 98(4), 99, and 47C of ERA by conflating them into a single test. It had misapplied the test set out in the case of Halpin v Sandpiper Books Ltd UKEAT/0171/11/LA on the question of whether a pool of one could be reasonable in a redundancy situation. Further, it was asserted that the ET had substituted its own reasons for those of the Respondent when considering the Respondent's action. Turning to the Equality Act 2010 and the regulations it was asserted that the ET had failed to appreciate that the reasons for the redundancy required to be found by them, and set out in their reasons, before they could decide that there were breaches of the Act and Regulations. It was argued that the ET had failed to address the burden of proof as it did not set out anywhere what unlawful act or acts of discrimination had been committed. Therefore it was not clear that the Tribunal had properly applied the law. The written grounds of appeal did include a ground of perversity but counsel abandoned that ground.

18. Mr Hardy, counsel for the Respondent, argued that the judgment failed to provide reasons as required by rule 30(6) of the Employment Tribunal rules and as set out in the cases of Meek and Greenwood v NWF Retail Ltd [2011] ICR 896. He argued that the Tribunal had a requirement to identify if and when the burden of proof shifted, what it had found proved. He relied on the case of Birmingham City Council v Semali [2012] Eq LR 910.

19. Counsel argued that if the reasons given were thought to be sufficient in terms of Meek, it was clear that the ET had conflated sections 98(4), 99, and 47C of ERA 1996. There was no finding that the dismissal had been because the Claimant was on maternity leave. Therefore there was no basis for the finding that her dismissal was automatically unfair. Similarly there was no finding on which to base a decision that there had been a breach of the Equality Act 2010 nor of the 1999 regulations. Counsel relied on the case of Madarassy v Nomura International plc [2007] ICR 867.

20. Mr Cheetham, counsel for the Claimant, argued that the Tribunal had found that the Claimant was undertaking a valuable full-time role, and performing well at work when she left on her maternity leave. While the Tribunal had found that there was a redundancy situation at the Respondent's establishment, they had not found that the Claimant's position was redundant and they had found that it was "outrageous" to find that there was a voluntary redundancy. It was clear that the Tribunal had found that the Respondent had decided to get rid of the Claimant even though her particular job was not redundant. The ET had found that the Respondent had given her marketing role to another employee, Ms McGinley, who was Mr Costello's assistant, with no intention of giving it back to the Claimant upon her return from maternity leave. The Tribunal had found that the procedures adopted were unfair because the Claimant did not have proper warning or indeed any warning that the meeting on 9 March 2011 might lead to her dismissal. The Tribunal had found that the Respondent did not even consider the establishment of a pool of persons who might be made redundant. They found that the Claimant was offered two posts which were clearly unsuitable and that her request for part-time working was denied.

21. Counsel argued that the Tribunal had made findings in fact which should not be disturbed. He made reference to the case of Williams v Compair Maxam Ltd [1982] IRLR 83. He argued that in the circumstances of this case it was unfair to have a pool for redundancy which consisted of one person. He referred to the cases of Bansai v Alpha Flight Services ET/0652/03 27 and Fulcrum Pharma (Europe) Ltd v Bonaserra ET/0198/1020. He referred also to the case of Freud v Bentall's Ltd (1982) IRLR 443 and R v British Coal Corporation exp Price (1994) IRLR 72. He argued that the posts offered to the Claimant were unsuitable and there had therefore been a breach of the terms of regulation 10. Therefore there was a breach of s.99 ERA 1996 by virtue of regulation 20(1)(b).

22. In relation to discrimination, Mr Cheetham referred to a part of the evidence in which it was found by the ET that Mr Costello and Mrs Reid decided that the Claimant could work part-time in a new post but did not tell her that. Under reference to the case of BA v Starmer [2005] IRLR 862 he submitted that the Claimant had been subjected to a purported redundancy process which was in fact tailored to achieve the determination of her employment. He argued that it was clear from the reasons given that the ET had found that the Respondent had treated the Claimant unfavourably because she was on maternity leave. Any assessment made by the Respondent that her post was redundant must been based on assessments made during her maternity leave at a time when her job had been given to Ms McGinley with no intention of its being returned to the Claimant. Therefore she had been subjected to unfavourable treatment because she was on maternity leave. Counsel made reference to the cases of Rees v Apollo [1996] ICR 466, International Service Association v Paul [2004] IRLR 42 and Intelligent Applications Ltd v Wilson EAT/412/92. In support of his submission he referred to the EH RC's statutory code of practice and to the example given at paragraph 8.20 as follows: –

"An employer dismisses an employee on maternity leave shortly before she was due to return to work because the locum covering her absence is regarded as a better performer. Had the employee not been absent on maternity leave she would not have been sacked. A dismissal is therefore lawful, even if performance was a factor in the employer's decision-making."

Mr Cheetham also referred to ACAS Guidance "Managing redundancy for pregnant employees or those on maternity leave" at page 5: –

"You may find that during a woman's maternity leave you can manage without her by redistributing or re- organising the work. This is not a valid reason to make her redundant. Dismissing her is likely to be unlawful discrimination (and automatically unfair dismissal), because the woman would not have lost her job if she had not had to take time off work to have a baby."

Counsel argued that the ET had found that the Respondent had not even thought of drawing up a pool of those from whom it might select a person to be made redundant but had chosen the Claimant because she was off on maternity leave. He referred to the case of National Union of Teachers v Watson UK ET/0204/06.

23. In response to the arguments of counsel for the Respondent, counsel for the Claimant submitted that while the judgment might not be particularly refined legal draughtsmanship, it was sufficient to comply with the rules and with the guidelines set out in the case of Meek. He referred to the case of English v Emery Reimbold and Strick Ltd [2003] IRLR 425 and argued that in the present case the reasons given were sufficient. In relation to the argument about the Tribunal misunderstanding the case of Halpin, counsel argued that the ET had not said that a pool consisting of one person was always unfair; they had found it unfair in this case. Counsel argued that that was a matter of fact for the ET and that their finding should not be interfered with. Counsel argued that the ET had not substituted its own view but had rather expressed its view about the lack of reasonableness of the course of action taken by the Respondent.

24. Turning to the question of the onus of proof, counsel referred to the case of Laing v Manchester City Council [2006] IRLR 748 from which he extracted the proposition that an ET did not necessarily fall into error by failing to adopt a two stage approach. Counsel argued that it was obvious from the reasons that the ET had found that there was a prima facie case.

25. As regards disposal, counsel argued that the appeal should be refused. Failing that he sought a remit to the same Tribunal in order to avoid wastage of time and expense. He indicated that he may seek the costs of unnecessary appeal proceedings given that no attempt to have clarification on a review was made by the Respondent.

Discussion and decision

26. We have come to the view that the reasons in this case do not comply with rule 30(6). The rule is in the following terms: –

"Written reasons for a judgment shall include the following information –

(a) the issues which the Tribunal has identified as being relevant to the claim;

(b) if some identified issues were not determined, what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and

(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated."

27. Despite a valiant attempt by Mr Cheetham to construe the reasons in such a way as to comply with the rule, we have come to the view that subparagraphs (c), (d), and (e) have not been complied with. While it is possible to read the judgment and obtain from it the flavour of the ET's view about the redundancy of the Claimant it cannot be said that findings in fact have been made which form a basis for the decisions that there have been breaches of the various parts of the statutes involved. The language of the reasons is colourful and vivid but it does not set out in the way required findings of fact, a concise statement of the law, and how the facts and law have been applied.

28. We are conscious that at the rule 3(10) hearing it was stated that there is no reasoned explanation for the finding in paragraph 5.2 that the dismissal was pregnancy/maternity related. Having heard all of the arguments and having considered the written material we agree that there is no such explanation.

29. It may be useful in a claim such as this to recall the statutory provisions which are the basis of the claim. Rule 30(6)(d) requires a concise statement of the law. There is no such statement in these reasons. The regulations are in the following terms:-

"Maternity and Parental Leave etc. Regs 1999

9. An employee who takes maternity leave

(a) is entitled during maternity leave, to the benefit of all the terms and conditions of employment which would have applied had she not been absent.

10. Redundancy during maternity leave

(1) This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor or an associated employer, under a new contract of employment that complies with paragraph 3 (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that –

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed and as to other terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the previous contract.

20. Unfair dismissal

(1) An employee who is dismissed is entitled under s.99 of the 1996 Act to be regarded for the purposes of part X of that act as unfairly dismissed if-

(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or

(b) the reason or principal reason for the dismissal is that the employee is redundant and regulation 10 has not been complied with

(2) An employee who is dismissed shall also be regarded for the purposed of Part X of the 196 act as unfairly dismissed if-

(a) the reason (or if more than one the principal reason) is that the employee was redundant;

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and

(c) it is shown that the reason (or if more than one the principal reason) for which the employee was selected for dismissal was a reason of a kind specified in paragraph (3).

(3) The kinds of reasons referred to in paragraph 1 and 2 are reasons connected with-

(a) the pregnancy of the employee

(b) the fact that the employee has given birth

(d) the fact that she has taken maternity leave."

30. We do not know if there was evidence from which the ET could make findings which would provide a basis for a conclusion that the regulations have been breached; the judgment is deficient in its narration of what the basis was for the decisions which were reached. We have decided that the ET has erred in law in coming to its decisions but not giving sufficient explanation of why it did so.

31. Thus it is necessary to remit this case to a new Tribunal in order that the facts be found and the law applied to them. We have considered whether it would be fair to remit to the same ET. We have decided it would not; the ET has given its view, and we have decided that the interests of justice are best served by a fresh Tribunal considering the matter again.

32. The appeal is allowed and the case remitted for rehearing by another Tribunal.