Failure to keep employee informed of suitable alternative vacancies whilst she was on maternity leave constituted discrimination (Stewart v British Midland Regional Limited)

In the case of Stewart v British Midland Regional Limited ET/4100944/2016 the Employment Tribunal held that the Claimant had been unfairly dismissed and discriminated against when her employer dismissed her for the reason of redundancy whilst she was on maternity leave.

The facts in Stewart v British Midland Regional Limited

Mrs Stewart commenced employment with British Midland Regional Limited (“BMR”) on 21 January 2008. She subsequently transferred across to the position of Operations Analyst.

In or about April 2014 Mrs Stewart became pregnant and it was confirmed in writing that her period of maternity lead would commence on 25 December 2014. Whilst Mrs Stewart was on maternity leave there were some rumours that redundancies were to be made at BMR, and that these redundancies may affect her position. She enquired with HR at BMR and was told that her position was not under threat.

In September 2015 a redundancy process did in fact commence BMR and Mrs Stewart was told that her position would potentially be made redundant. Mrs Stewart was keen to keep abreast of what was happening with the redundancy process but found it difficult to log onto BMR’s intranet from her home or, equally, to open attachments sent to her. She requested from BMR that updates on the redundancy process be sent to her private email address and she was told that this would happen from now on.

On 13 September 2015 BMR’s sister company, Loganair, advertised for a Planning and Scheduling Engineer based in Glasgow. No formal qualifications were listed on the vacancy as being required.

The consultation process commenced later in September 2015 and on 2 October 2015 Mrs Stewart attended an individual consultation meeting. Mrs Stewart mentioned at this meeting that she was not looking to relocate due to family circumstances and, further, that she was having difficulty accessing BMR’s intranet from home.

On 19 October 2015 BMR informed Mrs Stewart that the Aberdeen office and hanger facilities would relocate to East Midlands and Bristol. This rendered Mrs Stewart’s position redundant. She was offered £8,000 to assist in relocating and told that she would be kept abreast of job vacancies in the group (including at Loganair).

On 17 November 2015 Mrs Stewart was emailed to told that she would be made redundant. There was no mention in this letter of any steps being taken by BMR to redeploy Mrs Stewart or find her a suitable alternative vacancy.

On 22 December 2015 BMR internally advertised the vacancy of the new position of Engineering Administrator, a role that Mrs Stewart was qualified for. Mrs Stewart was not made aware of this role as she could not access the company’s intranet from home. This position was subsequently offered to Kerry Fyfe. Mrs Stewart subsequently found out that Ms Fyfe had been offered this role and became upset.

Mrs Stewart’s employment terminated on 6 January 2016. She subsequently emailed BMR’s HR department to complain that she believed that she had been unfairly dismissed and discriminated against by not being offered the suitable alternative vacancy of Engineering Administrator. A grievance process ensued and Mrs Stewart was told that she would be offered the position of Engineering Administrator; she was, however, not happy with the job that she had been offered (as she felt it needed to be better than the one she had previously) and she felt the trust and confidence that she had previously had in BMR had been damaged. She was also concerned that Ms Fyfe would lose her job if she took the position offered. She therefore wrote to BMR on 24 March 2016 to inform them that the role offered was not acceptable.

Mrs Stewart subsequently made Employment Tribunal claims for ‘ordinary’ unfair dismissal (part X Employment Rights Act 1996) automatic unfair dismissal and pregnancy and maternity discrimination (section 18 Equality Act 2010).

The decision of the Employment Tribunal in Stewart v British Midland Regional Limited

The Employment Tribunal upheld Mrs Stewart’s claims for ‘ordinary’ unfair dismissal, automatic unfair dismissal, and pregnancy and maternity discrimination.

Pregnancy and maternity discrimination

The Employment Tribunal held that Mrs Stewart not being informed of various suitable alternative employment (including but not limited to Engineering Administrator) constituted unfavourable treatment, and that she had been afforded such treatment because she was on maternity leave.

The Tribunal found that there had not been a breach of Regulation 10 of the Maternity and Parental  Leave Regulations 1999 (“MAPLE Regs”) as the salary of the roles offered to her would not have been suitable for her (as they constituted a signficant salary drop).

Unfair dismissal

The Employment Tribunal held that, although there had been a broadly fair redundancy process, the failure to keep Mrs Stewart informed of suitable alternative vacancies (and to offer her such when s suitable alternative position arose) rendered her dismissal unfair.

The Employment Tribunal awarded Mrs Stewart £7,000 as injury to feelings her her discrimination claim, with the parties left to agree the applicable net wage for calculating her claim for loss of earnings.

Our solicitors’ views on Stewart v British Midland Regional Limited

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates that broadly fair redundancy procedures can be rendered unfair by minor procedural defects, particularly when the affected employee is on maternity leave.”

The judgment of the Employment Tribunal can be found here