Nursery Fails to Follow Redundancy Consultation Process and Threatens Legal Action as Response to Discrimination Claims

In Mrs Chalmae El Myloudy Zougar v Kidzrus Nursery Limited, a childcare practitioner succeeded in her unfair dismissal and victimisation claims. This came after the employment tribunal found flaws in her employer’s redundancy consultation process. Read on as we uncover what happened, the judgment, and the legal implications of an improper redundancy consultation.

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The Facts in Mrs Chalmae El Myloudy Zougar v Kidzrus Nursery Limited

Background

Mrs Chalmae El Myloudy Zougar (“The Claimant”) began working as a lunchtime cover assistant for Kidzrus Nursery Limited (“The Respondent”) on 20 March 2018. Almost a year and a half later, on 1 September 2019, she became a childcare practitioner.

Respondent Initiates Redundancy Consultation Process

The Covid-19 pandemic hit the following year, and the respondent was concerned about its survival. It held a management meeting on 3 May 2020 to discuss the possibility of redundancies and sought advice from an employment consultancy. At first, it decided to offer voluntary redundancy before moving to a selection criteria. The respondent would consider qualifications, service length, and disciplinaries before making a decision.

During the redundancy process, the claimant emailed the respondent on 16 May to raise concerns about returning to work. She explained that she had diabetes, and when the respondent requested information on the type, she confirmed that it was Type 2. At such time, she also informed them that she’d recently discovered she was pregnant.

By 27 May, the claimant had two doctor’s notes, the second stating she could not attend the workplace. It explained that she “was in a high-risk vulnerable group for Covid infection” due to stress, being pregnant and having diabetes. Since she didn’t qualify for furlough payments or sick pay, she was placed on unpaid leave from 1 June.

Claimant Informed She’s Being Made Redundant

On 8 June, the respondent issued letters informing its workforce that 10 to 15 employees would be made redundant. Four days later, the claimant received a letter inviting her to a consultation meeting arranged for 15 June. However, since she was unwell, the meeting took place without her.

During the meeting, it was noted that the claimant didn’t possess a “full or relevant qualification”. Although she held one, the Department of Education didn’t recognise it for this particular situation. Those in attendance then discussed that there wasn’t any alternative work available for her and that a second meeting, with her in attendance, would be arranged for 22 June.

In the meantime, on 15 June, the claimant was informed that she’d been selected for redundancy due to being unqualified. She took issue with this, challenging her unqualified status.

Redundancy Consultation Process Halted As Grievance is Raised

The following day, her trade union representative gave the respondent a grievance, claiming bullying, pregnancy discrimination, and underpayment of wages. This led to a hearing on 24 June and placed the redundancy consultation process on hold. Since grievance procedures were ongoing, the second consultation meeting was postponed, never to take place.

On 7 July, the claimant learned that her grievance had been unsuccessful. The respondent stated that she wasn’t “level 2 qualified”, thus making their decision valid. Regarding her claim of pregnancy discrimination, the respondent stated that there wasn’t any evidence of this.

In response, the claimant appealed this decision on two accounts. First, she asserted that she was, in fact, level two qualified. Second, she argued that she was being discriminated against because of pregnancy, stating the respondent’s decision had been influenced by her absence from work due to her pregnancy.

Consequently, an appeal hearing took place on 23 July. During the hearing, the respondent reasserted that she wasn’t qualified because her qualification “was not an approved one”. Furthermore, they again found no evidence of pregnancy discrimination. The unsuccessful appeal was delivered to the claimant on 4 August.

Respondent Pays Off Childcare Practitioner

On 9 September, the Claimant’s trade union representative emailed the respondent about her unpaid leave. They claimed that she’d been forced into it and discriminated against since it arose from her need to shield herself during pregnancy. She’d only been following Government guidance, so they urged the respondent to compensate her.

The respondent replied on 30 September. However, their response probably came as a surprise. They alleged that the trade union representative had advised that they pay the claimant off and stated that her final day of employment was that day.

A few weeks later, on 14 October, the trade union representative sent their own response. They denied the claims that they’d suggested the respondent pay the claimant off and questioned her final day. They wanted to know how the respondent determined this as her last day and whether her exit amounted to redundancy. This was because, if it did, she’d be eligible for redundancy pay.

When the claimant received her final payslip, she learned she hadn’t been paid. She queried this, and on 26 November, the respondent stated that her “full and final settlement” figure would be £959.20. They explained that they needed her acceptance of this figure before they paid it.

Claims Brought to Employment Tribunal

Whilst correspondence was exchanged between the trade union representative and the respondent, the claimant undertook ACAS early conciliation. This occurred on 7 and 8 October before she initiated her first employment tribunal claim on 24 December. At the time, her claims included unfair dismissal, pregnancy discrimination, race discrimination and unpaid statutory redundancy pay. Before proceedings commenced, she withdrew her claim of discrimination based on race.

Then, on 8 October 2021, the claimant brought her second claim to the employment tribunal. This time, she alleged post-employment victimisation, asserting that the respondent had failed to provide references and given a legal threat. She stated that the victimisation arose after her protected acts of raising a grievance and her first claim.

The Employment Tribunal’s Judgment

The employment tribunal began by looking at the ordinary unfair dismissal claim. Quickly, they found flaws in the redundancy consultation process. Rather than inviting the claimant to a consultation meeting before making a decision, they simply decided to make her redundant. What’s more, the second consultation meeting that was supposed to be rearranged after being postponed following her grievance never took place.

Regarding the redundancy criteria, the tribunal acknowledged that considering service length and qualifications was reasonable. However, the tribunal identified instances where the respondent didn’t follow their criteria completely. For example, an unqualified employee with less service than the claimant wasn’t made redundant. As such, considering the flaws in the redundancy consultation process and selection criteria application, the tribunal ruled she had been unfairly dismissed.

Moving on, the tribunal looked at the claim of victimisation, in breach of the Equality Act 2010. Since the respondent accepted that the claimant’s protected acts partly influenced their decision not to provide references and to take legal action, the tribunal found she’d been victimised.

Ultimately, the tribunal dismissed all other claims. However, with the claimant winning her claims of ordinary unfair dismissal and victimisation, a remedy hearing has been scheduled for 20 January 2025.

Legal Implications of Improper Redundancy Consultation Process

As demonstrated in the above case, the legal implications of an improper redundancy consultation process can be significant. While the remedy in Mrs Zougar’s case is yet to be determined, it will likely include a compensatory figure. Employers who make similar errors could face equally severe, if not worse, outcomes depending on the circumstances.

With this in mind, employers must carefully approach the redundancy consultation process, establishing reasonable and lawful selection criteria. However, as this case demonstrates, simply having criteria is not enough. These must be applied consistently and transparently, and crucial steps, such as holding meetings, cannot be overlooked. 

Failure to follow a fair and accurate process exposes employers to significant legal risks, including lengthy tribunal proceedings and potential orders to pay substantial compensation. If you think your employer hasn’t followed an adequate process and has breached your rights, get in touch now. Redmans Solicitors are employment law specialists who can assess your case and advise you on your possible next steps.

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