Appeal No. UKEAT/0213/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 31 October 2012

Before
THE HONOURABLE MR JUSTICE BURTON
DR B V FITZGERALD MBE LLD FRSA
MR A HARRIS

S G PETCH LTD	APPELLANT

MRS S ENGLISH-STEWART	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR HENRY KNILL
(Solicitor)
MILS Solicitors
t/a Motor Industry Legal Services
27b The Mansions
252 Old Brompton Road
London
SW5 9HW	
For the Respondent	MR JAMIE MORGAN
(of Counsel)
Instructed by:
Simpson Millar LLP
21-27 St Paul’s Street
Leeds
LS1 2JG

SUMMARY
MATERNITY RIGHTS AND PARENTAL LEAVE
Sex discrimination
Unfair dismissal

The Tribunal erred in concluding there was a discriminatory dismissal on the grounds that the Claimant had taken maternity leave, contrary to section 3A of the SDA, section 99 of the 1996 Act and paragraph 20 of MAPLE, when in the light of the Tribunal’s own findings it either did decide or was bound to have decided that there was a dismissal for redundancy, so that paragraph 20(2) not paragraph 20(1) of MAPLE applied, and the Tribunal failed to ask or answer the correct questions under that sub‑paragraph.  The dismissal for redundancy was plainly in connection with the taking of maternity leave, in circumstances in which it was accepted and found that the redundancy/lack of necessity for employing four rather than three people in the relevant department became apparent while the Claimant was absent on maternity leave, but the Tribunal did not consider (i) whether paragraph 20(2)(b) applied or (ii) whether the Claimant was bound/likely to have been dismissed in any event (Polkey).  Remitted to the ET for that purpose, to take place at the same time as the (already adjourned) remedies hearing, if the latter should arise in the light of the Tribunal’s further conclusion on liability/loss.

THE HONOURABLE MR JUSTICE BURTON
Introduction
1.	This has been the hearing of an appeal by the Respondent employer, S G Petch Ltd, against the unanimous decision of the Employment Tribunal sitting at Newcastle‑upon‑Tyne handed down after a hearing of four days in February and August 2011 on 23 August 2011.  By that decision the Tribunal concluded that the Claimant was unfairly dismissed pursuant to section 99(1) of the Employment Rights Act 1996 (ERA) and Regulation 20 of the Maternity and Parental Leave Etc Regulations 1999, colloquially called MAPLE, and was unlawfully discriminated against by the Respondent pursuant to section 3A of the Sex Discrimination Act 1975.  The Tribunal made a finding in relation to unauthorised deduction of wages that has not been the subject of appeal before this Tribunal, and also dismissed – although it does not say so in terms, this is clearly the import of the Judgment – a separate application made by the Claimant by reference to victimisation.

2.	The decision in favour of the Claimant on liability was followed by an application for a remedies hearing.  That remedies hearing was adjourned part‑heard in order to give an opportunity at the instance of the Tribunal for the Claimant to obtain a medical report in respect of the stress that she alleges that she suffered and that is alleged to be recoverable against the Respondent consequential upon the Tribunal’s findings, and the further remedies hearing has been adjourned.

3.	This appeal has been put before the Tribunal by Mr Knill, a solicitor, who took over after counsel, Mr Robinson‑Young, started the hearing at the original dates fixed, and Mr Morgan of counsel, who again took over the hearing, from a Mr Goldberg of counsel, has appeared both below by the end of the hearing and on appeal before us in resistance to Mr Knill’s appeal.  There is no cross‑appeal.

4.	The grounds of appeal were, with respect to Mr Knill, extremely diffuse, and so were consequently the responses to them by the Claimant, as Respondent to the appeal, and to a substantial extent so were the written submissions in support of the appeal.  The hearing has gone much shorter because of the issues which the Tribunal took the view were the central ones in this appeal, although we are entirely satisfied that those issues fell squarely within one or other, or more than one, of the various grounds of appeal put forward.

5.	The real question that arose in this appeal is whether in fact the Tribunal did not find, or could only but have found, that there was a redundancy when the Respondent dismissed the Claimant on 4 June 2010.  The consequences of that redundancy then need to be considered, and the circumstances and context, to see whether, as indeed the Tribunal found, there was a breach of Regulation 20 of MAPLE and/or an infringement of section 99 of the ERA 1996, then, further on the alternative claim, by reference to the Sex Discrimination Act (SDA).

6.	The submissions of Mr Knill describe the findings by the Tribunal, to which we will refer in a moment, with regard to in particular section 3A of the SDA, as absurd and in fact involving a conclusion, without evidence or reasoning to back it up, that the dismissal of the Claimant was on the grounds of her having taken maternity leave.  It is quite clear to us that that is indeed not the basis on which the Tribunal either could or should have delivered its decision.  There was plainly, as we adjudge, a redundancy situation; the issue is in fact whether the dismissal for redundancy was one that was in connection with the taking by the Claimant of maternity leave, such as to offend against section 20(1)(b) and (2) of MAPLE, which were indeed set out, among other  relevant statutory provisions, in paragraph 50 of the Judgment.

The facts and the Judgment of the Tribunal 
7.	The facts, briefly, can be set out by reference to the Judgment, and although there were other documents produced before us – witness statements, transcripts and exchanges of correspondence between the parties – the facts appear very clearly from the Judgment, and indeed spell out clearly the conclusion that there was a redundancy in this case.

8.	The Claimant was employed until 2007 full‑time, and then, after her return from maternity leave for her first child, part‑time as a manager in the Respondent company’s sales and marketing department.  Paragraph 6 of the Judgment reads as follows:

“The claimant started her employment with the respondent on 1 June 2005, her contract is at pages 80‑95.  Her job title in her contract of employment states that she is the Group Sales and Marketing Manager and that she reported to Mr Steve Petch and Mr Simon Rees.  Mr Steve Petch is the Managing Director of the respondent and Mr Simon Rees is the Financial Director.  The claimant’s job function was to oversee the marketing of the respondent’s business including extensive advertisements.  She managed the marketing department which was built up by her to employ six people, five of them female and one male, Mr Dave Smith.  There were three marketing assistants, a database manager and Mr Smith who was the graphic designer.  They all reported directly to the claimant.”

9.	The Claimant went on maternity leave in respect of her second child on 16 February 2009, and returned to work after taking her holidays, in circumstances that we do not need to resolve for the purposes of this appeal, after the end of the maternity leave period, so that she was to return to work in March 2010.  We then set out verbatim paragraph 10 of the Judgment:

“10. The claimant telephoned Mr Rees on 10 March 2010 and was told by him that he wanted to have a meeting with her on 18 March 2010 to discuss her return to work.  The meeting took place on 18 March 2010.  The claimant’s evidence is that Mr Rees said at the start of the meeting:–
‘Well Susie I will cut to the chase on this one, the Directors and I have been talking and as you have been off for what is it, a year or so and we have managed without you we are considering making the position of part‑time marketing manager or whatever redundant.  Your work has been absorbed by other members of your team and I want you to attend a meeting here next Tuesday.’”

10.	The Tribunal makes certain findings in relation to that meeting and what occurred thereafter in paragraphs 11‑13 of the Judgment, and the Tribunal then continues (paragraph 14):

“Mr Rees followed up the conversation with a letter dated 19 March […].  In it he says:–
‘The reason why we are considering making your current role redundant is that while you have been off on maternity leave for 12 months all your former jobs have been absorbed by the other staff alongside their existing roles and things have run very smoothly indeed and we cannot now see a need for this role, and believe that economics demand that we consider making this significant cost saving.’”

11.	There then followed a further meeting, on 30 March 2010, between the Claimant and the Respondent at which the Claimant was represented by a trade union representative.  Following the meeting of 30 March 2010, a further letter was sent to the Claimant from Mr Rees dated 8 April 2010, and it reads as follows:

“To be clear we are not proposing to make your position redundant because of your maternity leave but rather, for business reasons during the course of the last 12 months it has become apparent that we do not need a separate position for a marketing manager in the department.  Regardless of your absence on maternity leave these same discussions would therefore be taking place.”

12.	The Tribunal continued:

17. […] When asked about this in cross‑examination Mr Rees said that the respondent had realised that they only needed three people in the marketing department because the claimant was on maternity leave.  If someone had been off work sick for the same period the same conclusion would have been reached.  He went on to say that the claimant’s maternity leave ‘unmasked inefficiencies in the department, that is they could manage with less people [sic].  There had been a change to internet marketing and at the branches.  There had been a change in the type of marketing not necessarily in the volume.
18. Evidence was heard from Mr Dave Smith who is the group graphic designer.  During the claimant’s maternity leave he had overseen some of the day to day running of the department to make sure that all the work was completed on time.  He undertook various duties like organising, arranging and holding monthly marketing meetings; organising and costing distribution for promotional material; negotiating with newspapers over the cost of advertising; liaising for radio and television campaigns; researching new markets and product placement opportunities; negotiating suppliers for printing and more cost effective opportunities for internet suppliers; creating newspaper public relations in regional newspapers for events launches etc.  Some of his work had been covered by himself Ms Anderson and Ms Evans.  During cross‑examination he indicated that he had taken on the claimant’s role with little difficulty and had not had to do extra hours.  He had been able to step up because he was good at his job.  He did not have a manager, he was in a stand alone position.  If there were any problems he went to see Mr Rees.  He had attended marketing meetings with the Directors.”

13.	By a letter dated 22 April 2010 Mr Rees responded to the grievance and to a letter sent to him by Mr Llewelyn, and he said as follows (as quoted from in paragraph 23):

“’Clearly when you went on leave and during your leave it was envisaged that this would be a temporary arrangement pending your return.
It has become increasingly apparent over the last year (a process that has been ongoing for some time and as discussed with you) that the role of a manager is potentially not now needed in the department, given the change in the market.’
He then goes on to say:–
‘Your rights under the maternity legislation have been carefully considered and if there was not a potential redundancy situation you could of course have returned to your same terms and condition however, your work was temporarily absorbed during your period of maternity leave when we did not recruit a replacement and as your return has become imminent it has therefore forced the business to make a decision as to whether for business reasons set out above, that the position you occupied will be necessary.
No decision to permanently allocate your duties to other people has yet been made and your position is not at present redundant, but may become redundant subject to further points you make to us.’"

14.	At paragraph 27 the Tribunal continue:

“There then followed a letter of 4 June 2010 (pages 190‑192) from Mr Rees to the claimant.  He starts off the letter by saying that it had been explained to the claimant that they did not need an employee in the position that she had held.  Mr Rees mentioned the points raised by Mr Llewelyn and the claimant at the consultation meeting on 14 May particularly in relation to the claimant either being suspended or agreeing not to attend work and also the absorption of the claimant’s role within the marketing department.  Mr Rees then says:–
‘Having reviewed the whole consultation process, all minutes of meetings, and letter our decision is therefore now to make Susie’s role redundant and we formally therefore serve you with notice of redundancy and five week’s notice pay [sic] (which is to be paid in lieu of notice).’
The letter goes on to say that there was an offer of alternative employment in the internet department for which the terms and conditions were attached.  The claimant was required to accept within seven days.  Mr Rees then indicates that the claimant was entitled to a statutory redundancy payment of £1,687.50.”

15.	At paragraph 30 the Tribunal records that there was an appeal, which was heard by Mr Andrew Hodgson, a director of the Appellant company, and Mr Hodgson stated as follows in his letter:

“I do not find the redundancy was related to your maternity leave, other than coincidentally the company found that it did not need to recruit a temporary replacement during your maternity leave, which only served to confirm the view that your position was not ultimately necessary in the structure going forward.  […]
It was clear to me that some of the job roles carried out by your previous position were absorbed by others in the department.”

16.	The Tribunal set out in its Judgment the submissions that were made by both parties and the statutory provisions, and it then referred to a number of cases, which cases were in fact concerned with the issue, which they did not in the event resolve, of the fairness of the redundancy procedure, and whether or not there should have been a pool.  The Tribunal’s conclusions were set out as follows in paragraphs 56‑61 inclusive:

“56. It is accepted by the respondent that the claimant was dismissed by the respondent’s letter of 4 June 2010.  The reason put forward by the respondent was that the claimant was redundant.  We have to determine whether that was on the grounds of the claimant taking maternity leave or a reason connected with her taking maternity leave.
57. There is no dispute that the claimant did take a years maternity leave [sic].  She was due to return from her maternity leave on 16 February 2010.  She did not return to work for the respondent until 12 July 2010 when she started a new job under a new contract of employment with the respondent.  She made enquiries of returning to work at the end of her maternity leave but was prevented from doing so by the respondent.  We are satisfied that it was made clear to the claimant that she was to take her accrued holiday immediately following her maternity leave.  The claimant has given evidence that she was anticipating returning to work when her maternity leave expired on 16 February 2010.  Her maternity leave was for the birth of her second child.  She had made arrangement, which took some time to arrange, for childcare for both of her children.  Accordingly we are satisfied that she was forced to take her holidays following her maternity leave.
58. Towards the end of her holidays the claimant sought to return to work.  She should have returned to work on 16 March 2010 but was required instead to attend a meeting with Mr Rees on 18 March 2010.  At the meeting he told her that she was subject to a redundancy consultation period and that her job had been adsorbed into the work of the other employees in the marketing department.  This obviously came as a shock to the claimant.  She sought to return to work but Mr Rees said that she could not return to work although she would be paid in full.  We are satisfied that Mr Rees was the one who stated that the claimant should not return to work.  It is obvious from the documentation in the bundle that neither Mr Llewelyn nor the claimant accepted that she was not able to return to work as they queried it on a number of occasions.  The claimant was entitled under statute to return to work.  Mr Rees prevented her from returning to work.  In effect he suspended her during the consultation period.
59. During the claimant’s maternity leave the respondent did not recruit a temporary employee to cover the claimant’s work.  This was done by the remaining three members of the marketing department.  We find that most of the work that the claimant did was carried out by Mr Smith.  He said that he did not need to work extra to cover that work which could mean, that either the claimant’s work was not as onerous and time consuming as was thought prior to her maternity leave, or alternatively it could be said that Mr Smith’s work was not as onerous and time consuming as considered prior to the claimant’s maternity leave.  Mr Smith, in his evidence in chief, provides details of the duties he says he undertook.  The claimant of course only worked three days a week therefore her work would probably be more easily absorbed into Mr Smith’s day than if she had been working 5 days a week.  But it is clear that he took over the management role of the claimant by attending monthly marketing meetings, organising and costing out promotional material, negotiating with newspapers over costs of adverts, researching new markets and product placement opportunities, negotiating with print suppliers, creating newspaper public relations for events launches etc.  Mr Smith reported directly, as indeed did the claimant prior to her maternity leave, to Mr Rees and Mr Petch.  Mr Smith therefore took over most if not all of the managerial role that was carried out by the claimant.  He obviously had time to do so because he could incorporate that with his work as the graphic designer.  The respondent states, although no evidence has been provided to the Tribunal, that the other two members of the marketing department did work carried out by the claimant.  We have had only Mr Smith to give us evidence as to what he did.
60. A redundancy situation therefore was a possibility.  During the claimant’s maternity leave it was found that the work that was carried out by the marketing department could be carried out by three people instead of four.  No doubt those in the marketing department, including the claimant, had different skills.  They were still part of a team.  The only person who was singled out for redundancy was the claimant.  It is clear to us that there should have been, if the respondent was carrying out a proper redundancy process, a matrix to determine necessary skills to be retained by the marketing department.  The pool that the matrix should have been applied to would be all of the marketing team, that is the four members, including the claimant.
61. Because it became apparent to the respondent during the claimant’s maternity leave that there could be a possible reduction in the number of staff, and an employee being made redundant, the dismissal of the claimant must be on the grounds of her maternity leave or connected with her maternity leave.  The reason why the claimant was singled out was that the circumstances had shown that only three people needed to be in the marketing department.  The connection between that conclusion come to by the respondents and the claimant’s maternity leave is clear.  We are satisfied that the claimant succeeds in respect of section 3A Sex Discrimination Act that she was treated less favourably by being made redundant on the grounds that she had taken maternity leave.  We also find that she was unfairly dismissed pursuant to section 99 of the Employment Rights Act and section 20 of the Maternity and Parental Leave Etc Regulations that her dismissal was connected with her taking maternity leave.  We, therefore, find in her favour on both complaints.”

17.	The provisions of section 139 of the ERA 1996 dealing with redundancy are as follows:

“For the purposes of this Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—
[…] (b) the fact that the requirements of that business—
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished, or are expected to cease or diminish.”

18.	Mr Knill has referred us to a number of authorities, but most succinctly the decision of the Northern Ireland Court of Appeal in McCrea v Cullen & Davison Ltd [1998] IRLR 30, and in paragraph 11 Gibson LJ referred as follows to the:

“[…] proposition that an employee is dismissed by reason of redundancy if a dismissal is attributed to the fact that the requirements of the business for employees to carry out the work of management has diminished.  It will be seen that what the section is directed towards is not a diminution in the work of management but a diminution in the requirement of the company for employees to do the work of management.  Though the work of management remains to be done the applicant will be redundant if the company has so organised its affairs that the work is done by fewer employees.  So the question resolves itself into one effect, namely, is Mr Bailey merely doing the work formerly done by the applicant, in which case there is no redundancy but the replacement of one employee by another to do the work of the other, or has he undertaken the work of the applicant additionally to his own, in which case there has been a reduction in the number of employees required to do the work and the applicant’s dismissal is attributable to redundancy.”

19.	We have read the facts of this case as found by the Tribunal, and it is clear beyond doubt that the work that was previously done by four was now to be carried on by three as a result of the reasonable appreciation by the employer that that was what was required, and it goes without saying, but we say it now, that the position of the Claimant was not replaced, so that there was no challenge to the fact that instead of four in the sales and marketing department there was now three.  According to the evidence that we have seen, this can be explained by the modernisation, the introduction of IT and various other technological matters, as well as the fact that the work was shared out between the other three members of staff, which had previously been carried out by the Claimant, perfectly satisfactorily.

20.	The findings of fact by the Tribunal in particular at paragraphs 59‑61 are quite clear, and had the Tribunal asked itself the correct question – and it appears to us that it did not do so in relation to section 139, as helpfully clarified by McCrea – they would be bound to have said that there was a redundancy as part of which the Claimant was dismissed.  But in fact, in our judgment, the Tribunal did indeed so find, albeit that they may not have appreciated that that was what they were doing.  In paragraph 56 of the Tribunal’s Judgment, which we have quoted above, the Tribunal itself said:

“The reason put forward by the respondent was that the claimant was redundant.  We have to determine whether that was on the grounds of the claimant taking maternity leave or a reason connected with her taking maternity leave.”

21.	We read the word “that” as referring to the redundancy.  Mr Morgan submits that in fact on a syntactical analysis of paragraph 56, which we have quoted above, the word “that” refers back not to the previous sentence but to the dismissal in the first sentence in paragraph 56.  However, paragraph 56 does not stand alone.  Paragraph 61, after the Tribunal has set out the facts at 59 and 60, is equally clear.  We repeat again the relevant passages in that paragraph:

“Because it became apparent to the respondent during the claimant’s maternity leave that there could be a possible reduction in the number of staff, and an employee being made redundant, the dismissal of the claimant must be on the grounds of her maternity leave or connected with her maternity leave.”

22.	On the face of it that sentence makes no sense at all; clearly, it cannot be that it means that the dismissal must be on the grounds of maternity leave, when in fact the reverse has just been said in the earlier part of the sentence.  It certainly means that it would have been fair to say that it may be that such dismissal for redundancy was connected to her maternity leave, and we shall return to this later.  The Tribunal then continues:

“The reason why the claimant was singled out was that the circumstances had shown that only three people needed to be in the marketing department.”

23.	That is again a plain conclusion that there was a redundancy decision.  Then, the Tribunal says:

“We are satisfied that the claimant succeeds in respect of section 3A Sex Discrimination Act that she was treated less favourably by being made redundant on the grounds that she had taken maternity leave.”

24.	Again, this is a clear conclusion that she had been made redundant.  That is, in our judgment, exactly what they did.  However, they did not follow through the consequences of that finding.  The consequences of that finding are, so far as MAPLE is concerned, that there becomes applicable section 20(1)(b) and not section 20(1)(a).  The relevant sections of MAPLE read as follows:

“(1) An employee who is dismissed is entitled under section 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.”

25.	We do not need to trouble with Regulation 10.  MAPLE continues:

“(2) An employee who is dismissed shall also be regarded, for the purposes of Part X of the 1996 Act, as unfairly dismissed if—
(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;
(b) it is shown that the circumstances constituting a 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 reason referred to in paragraphs (1) and (2) are reasons connected with—
[…] (d) the fact that she took, sought to take or availed herself of the benefits of ordinary maternity leave or additional maternity leave.”

26.	Given the finding that either was made by the Tribunal or plainly was required to be made on their own findings, section 20(1)(a) did not apply and section 20(1)(b) did apply.  The issue consequently that the Tribunal ought to have addressed was whether the Claimant was able to show satisfaction of the three sub‑clauses in paragraph (2).  It is plain, for the reasons that we have given, that sub‑paragraph (a) was satisfied.  The issue therefore was, or ought to have been had the Tribunal asked itself the correct questions, as to the questions set out in sub‑paragraphs (b) and (c).

27.	With regard to sub‑paragraph (c), which we take first, the Claimant needs to have shown that the reason for which she was selected for dismissal was a reason of a kind specified in paragraph (3).  This does not require that the Claimant needs to show that she was dismissed because she had taken maternity leave, or on the ground of her having taken maternity leave.  The sub‑section is satisfied if she can show that the reason or reasons for the dismissal was or were connected to the fact that she had taken maternity leave, and it is plain that on the findings of fact by the Tribunal – indeed, the inevitable findings on the evidence it recites – the dismissal for redundancy in this case took place because the employer had appreciated the redundancy situation and the need for cutting back from four employees to three, as a result of the fact that the Claimant was away on maternity leave.  That is set out in terms in the correspondence to which we have referred in our quotations from the Judgment above, in particular the letter in paragraph 17 of the Judgment, which we shall repeat here in full:

“To be clear we are not proposing to make your position redundant because of your maternity leave but rather, for business reasons during the course of the last 12 months it has become apparent that we do not need a separate position for a marketing manager in the department.  Regardless of your absence on maternity leave these same discussions would therefore be taking place.”

Submissions, discussion and conclusions
28.	Mr Knill referred to a decision of Mummery J, as he then was, then President of the EAT, in Sewell v McCowen UKEAT/0569/94 of 13 November 1995.  That was an appeal by an unsuccessful applicant against a finding by the Tribunal that she had been made unfairly redundant, and the three issues that are set out, on all of which she lost, was whether there was a redundancy situation, whether it was fair to dismiss her without consulting her, and, if it was unfair to dismiss her without consulting her, whether it would have made any difference.  The facts of the case include the following summary:

“Having managed without Mrs Sewell during her maternity leave, they decided that her post as manager should be abolished and that she should be made redundant.”

29.	On the basis of that sentence, Mr Knill rightly points out that the facts of the case in Sewell are extremely similar, if not identical, to the facts in this case, but, as we sought to put to Mr Knill in the course of oral submissions, the fact that the facts of that case are similar does not take him anywhere, because it certainly does not constitute any kind of a finding by Mummery J that on the facts of that case a redundancy would not be “connected with” the taking of the maternity leave.  Not only was the issue not raised in that case by the appellant employee, but in fact the case antedated MAPLE, which did not come into force until 1999.  It seems to us that there is no sign as to how Mummery J would have decided the issue had he had to decide the same question as we do.

30.	Mr Morgan drew our attention to the case of Rees v Apollo Watch Repairs ELP [1996] ICR 446, which was not a redundancy case; it was a claim for unlawful discrimination on the ground of sex by reference to an allegedly unfair dismissal.  The facts of that case were that during the maternity leave of the appellant employee her replacement proved more efficient and acceptable than her, and she, the appellant, was consequently dismissed.  It was found that that was an unfair dismissal, but the claim of unlawful sex discrimination was dismissed at first instance and allowed on appeal.  As HHJ Peter Clark said at page 470:

“The immediate cause of her dismissal, as the tribunal found, was that the employer found the replacement more efficient and acceptable than the applicant.”

31.	Although that, again, has some similarities with this case, it was not a redundancy case and did not relate to the construction of MAPLE, which, again, had not yet come into force.

32.	It seems to us that we are put in a position of deciding an issue that in fact, for whatever reason, was not addressed by the Tribunal.  The Tribunal reached its conclusion, as we have quoted, in paragraph 61, that the Claimant was unfairly dismissed pursuant to section 99 of the ERA and section 20 of MAPLE, and that her dismissal was “connected with her taking maternity leave”.  That sentence, again, with respect to the Tribunal, does not appear to us to make sense.  Section 99 of the ERA 1996 is certainly the general provision whereby an employee is unfairly dismissed if the reason, or principal reason, is of a proscribed kind and the reason or set of circumstances must relate to ordinary compulsory or additional maternity leave.  But in order for the Tribunal to have made a finding of section 20 of MAPLE as they apparently did, in a case where there was plainly a redundancy, the Tribunal needed to consider the subparagraphs of sub‑section 20 (2) – (a), (b) and (c) – which we are now doing, and which they did not do.

33.	So far as concerns (c), which we are now addressing, the matter appears to us therefore to relate to matters not previously the subject of authority, albeit the two cases to which we have referred have certain similarities of various kinds.  The question can simply be put, described as a “coincidental” decision by the employer in the letter that we referred to in paragraph 15 above: namely, where it becomes apparent, as was accepted, during the maternity leave that there is a redundancy position, i.e. that the job of the person on maternity leave is superfluous to requirements, then is a decision so reached one that can be said to be, and indeed is, connected with the maternity leave?  In the course of argument we put the following suggestion: that if in fact it is not connected with maternity leave, then there is a real problem for a woman taking maternity leave that it may turn out in her absence not simply that someone else is better at the job than she but that her job itself is unnecessary, because it does not need to be carried on by anybody in her absence, thus revealing a redundancy situation such as was the case here.  It appears to us that it must be that such a position falls within the rubric ‘connected with maternity leave.’

34.	We would be minded, were this the only question not considered, as it was not by the Tribunal, to consider whether to substitute a conclusion to the contrary, if that was the matter that was alive and only alive on this appeal, but we shall turn in a moment to sub‑paragraph (b).  Before doing so, we should deal with one matter that has a relationship with the question of sending the case back to first instance. 

35.	If we are otherwise sending the matter back, it could be argued, and we put the suggestion to Mr Knill, which he adopted, that the one sentence that we quoted above from the last sentence that we quoted above from the letter of 30 March, set out in paragraph 17 of the Employment Tribunal’s Judgment, might have some relevance, where Mr Rees said:

“Regardless of your absence on maternity leave these same discussions would therefore be taking place.”

If it were in fact the case that the Respondent were able to say and show that the redundancy situation could have been, even was, appreciated irrespective of the maternity leave, then on those facts it might be said that there was no connection between the redundancy and the maternity leave.  That is the statement made in Mr Rees’ letter.  However, it is quite plain that (1) there was no evidence whatever given by the employer in this regard (we asked Mr Knill to identify any such evidence and he was unable to do so, even through the witness statements were in the bundle before us), (2) it does not appear to have been argued below (perhaps, of course, because the whole sub‑section was never properly argued before the Tribunal, but in any event not so), and (3) it would appear to us to be very difficult to support any such proposition, notwithstanding that it appears in that sentence in that letter when time and again the employer is very frankly stating, “There is a redundancy, and we have appreciated it as a result of your not being here and our being able to cope very well without you”.

36.	If we are to send the matter back to the Tribunal, and it appears to us that it would not be fair or just to allow this issue to go back to the Tribunal simply on the basis that something might turn up second time round, we are satisfied that if this is to go back to the Tribunal, it should be on the basis that there can be no doubt but that, as we conclude to be the case, sub‑paragraph (c) is satisfied.

37.	We turn to sub‑paragraph (b).  As we have said, there was a good deal of time spent by the parties, both below and in submissions, and by the Tribunal, in addressing the question of the fairness of the consultation approach, by reference to whether or not there was or ought to have been a pool not of one, namely, the manager – the Claimant – but of four, namely the manager and the three other people in her department, and consequently a matrix and a set of selectivity criteria etc.  The Appellant employer gave considerable evidence as to why they took the course they did, and explained the fairness of the consultation procedure, but the conclusion reached by the Tribunal, albeit that it did not lead to any relevant finding, was as set out in paragraph 60:

“The pool that the matrix should have been applied to would be all of the marketing team, that is the four members, including the claimant.”

38.	But that is not only a question that was not decided, and did not need to be decided on the basis of the Tribunal’s findings, but one that also does not require to be decided or fall to be decided in the light of our own conclusion that the right issue, and the only issue, in the light of the findings of fact by the Tribunal is by reference to Regulation 20(2) of MAPLE, and now (b).  That question involves the Claimant in showing that the circumstances constituting a 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.  It is plain that on the findings of fact by the Tribunal the redundancy applied equally to one or more employees in the same undertaking who have not been dismissed by the employer, in the sense that the other three members of the department were not dismissed.

39.	However, the crucial issue appears to us to be whether those other three held “positions similar” to that held by the employee.  Mr Knill submits that they plainly did not, on the very findings of the Tribunal and indeed based on reality.  The Claimant was the manager in charge of the department carrying out a managerial role of responsibility; Mr Smith was the graphic design specialist (albeit he was able while she was away to take on some of her managerial responsibilities, he had his own set of skills that she did not have); and the other two, Ms Anderson and Ms Evans, were juniors, and indeed in the course of consultation it was made quite clear by the Claimant that she would not have been willing to take on either of their roles.  Mr Knill submits that the positions of the Claimant and the other three were totally dissimilar in those circumstances.  Mr Morgan submits that the positions were similar because, as was found by the Tribunal, they were part of the same team and had been able, at any rate so far as Mr Smith was concerned, to take on some of the duties and responsibilities of the Claimant.

40.	We are invited by Mr Knill to say that it is quite plain that the positions are not similar, and to substitute our conclusion that the provisions of section 20(2)(b) have not been satisfied, which would result in the claim failing.  Mr Morgan has submitted that we should substitute our view that the positions are plainly similar, that no Tribunal could reach any other conclusion, and accordingly find that section 20(2) is satisfied and dismiss the appeal on that basis.  We are conscious of the requirements about which we need to be satisfied before refusing to remit a decision to a Tribunal.  Whereas here we conclude that the Tribunal erred, in particular in not asking itself the right or sufficient questions in law, and substituting our own conclusion, we have to be satisfied that no other conclusion could be reached by another Tribunal below, if they were to be hear it, than that adumbrated by the relevant party, be it Mr Knill, who says we must be in a position to be clear that the positions were not similar, or Mr Morgan, who says that we should be clear that the positions were similar.  We find ourselves, perhaps not unnaturally, unpersuaded by both counsels’ submissions, and we are satisfied that this matter should be restored to a first‑instance Tribunal in order to decide whether the provisions of Regulation 20(2) are satisfied by reference to sub‑paragraph (b).  We have already indicated that we have already concluded, and a Tribunal must conclude, that sub‑paragraphs (a) and (c) are satisfied.

41.	We shall return to what should occur in a remission, after we have briefly returned to reviewing the Tribunal’s Judgment, which is necessary for us to do.  We have indicated that, in the light of the conclusions of the Tribunal, they themselves must have come to the conclusion, or should have, that there was a redundancy and thus the provisions of section 20(1)(b) and (2) applied, and thus did not ask themselves the correct question.  We are satisfied, equally, that they could not properly in law have come to the conclusion that 20(1)(a) applied or that the SDA section 3A was satisfied.  On the evidence that they themselves found, it is quite plain that they could not possibly have found, in so far as they did, that the employer dismissed the Claimant on the grounds of her having taken maternity leave.  The basis upon which the Respondent dismissed the Claimant was for redundancy, albeit that, subject to whether sub-paragraph (b) is satisfied, that would be a dismissal for redundancy in connection with her taking maternity leave.

Disposal
42.	So, if the matter was to go back, on what basis, and to whom, should it go?  We have taken issue with the conclusions of the Tribunal, but we have not in any way doubted the findings of fact by the Tribunal; indeed, we have based ourselves gratefully upon them.  Mr Knill submits that this is one of those cases where the Appeal Tribunal should, with reference to Sinclair Roche & Temperley v Heard [2004] IRLR 763, conclude that this is not a case where, as normal, a rehearing should be carried out by, or referred back to, the same Tribunal.  It is certainly the case that for reasons of cost, good use of judicial time and fairness an appeal ought ordinarily to be sent back to the same Tribunal, particularly where, as here, much of the facts would not be revisited on a rehearing.  However, there are certainly exceptions, and if the Employment Appeal Tribunal is satisfied that the Tribunal so misunderstood the position and so mishandled the first hearing that one party is entitled to say on an objective basis that confidence in that Tribunal has been lost, either by one or both parties or a fortiori by the Appeal Tribunal, then that might be an exception to the general rule.  Mr Knill so submits.

43.	We are satisfied that, with the guidance given by this Tribunal the same Tribunal can safely and satisfactorily resolve the rehearing.  We are extremely anxious that as little time and costs should be wasted as possible.  If we sent it to a new Tribunal, then that would mean a complete restart, which would be undesirable.  Equally, if this was simply reheard as a matter of liability, then that too would be undesirable, because there would remain the issues of Polkey v A E Dayton Services Ltd [1987] IRLR 503, which was not addressed by the Tribunal and plainly ought to have been, given that it was referred to in submissions to them by the Respondent’s counsel, and the remedies hearing, which is already partly underway.

44.	We are satisfied that the right approach is for this to be sent back to the same Tribunal, who will hear the issue as to whether this dismissal for redundancy can be brought by the Claimant within Regulation 20(2)(b), whether the Claimant can show that the circumstances constituting a redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee and have not been dismissed by the employer.  That investigation will plainly require consideration of the precise job specifications and work done by the other three in the department, what happened while she was away and what happened when she came back.

45.	Closely related to that will be what we can call the Polkey consideration, because Mr Knill firmly submits that it will be found that, even had that course been followed, and even were it the case that it was decided that the other three employees held positions similar to that held by the employee when the Claimant was made redundant such as to trigger, on the face of it, a breach of Regulation 20, in fact on consideration of the special skills of the others and their roles and seniorities it will be found by the Tribunal, when reviewed by them, that the Claimant would have been dismissed in any event and hence has suffered no loss.  That seems to us the best course, namely that there should be one hearing of a reconsideration of MAPLE, the consideration of Polkey and the consideration of any remedies that arise.  No costs will be wasted in that regard, because of course the preparation for the remedies hearing, albeit it is ordinarily contingent on success on liability, has already been carried out, so that even if the employer is successful at the review hearing on liability or on its Polkey argument, there will not be a waste of costs expended on remedies, as they have to a large extent already been so expended.

46.	To that extent, therefore, this appeal is allowed, and that will be referred back to the same Tribunal for consideration in accordance with this Judgment.