The need to produce and retain contemporaneous written evidence when dismissing an employee cannot be overstated. The case of Osborn v Mothercare Global Brand Ltd highlights this, with an employment tribunal awarding the claimant nearly £68,000 in compensation.
Background
The claimant was employed as a Technical Manager from April 2016 until December 2021 when her employment was terminated purportedly by reason of redundancy. The claimant took two periods of maternity leave during her employment. The second period of maternity leave ended in May 2021.
While on her second period of maternity leave the claimant's role was covered by consultants. For the first six months the consultant happened to be the claimant's husband. However, when a new Chief Product Officer (CPO) was recruited her husband's contract was not renewed. The CPO then recruited another consultant, Chris Beeley. Mr Beeley undertook some of the duties of the claimant's role and also covered the claimant's line manager's role when he was absent on long-term sick leave. The respondent later denied that Mr Beeley had been recruited as maternity cover for the claimant.
Although the claimant's maternity leave ended on 22 May 2021 she took annual leave until 29 June 2021. She subsequently worked remotely, as many people did after Covid. When the office changed location, she was not given a pass or parking space. The claimant requested a meeting to introduce herself to the new CPO. At that meeting, which took place on 23 July and without prior warning, the claimant was informed that her role was at risk of redundancy.
Two redundancy consultation meetings then took place, both lasting not much more than 25 minutes. The claimant was given the opportunity to apply for a new Head of Technical role but was not offered a direct alternative. She submitted a grievance alleging that the failure to offer her an alternative role was maternity discrimination. A third redundancy consultation meeting was also used to consider the claimant's grievance. When a fourth redundancy consultation meeting was offered, the claimant responded that there was no way she could continue to work for the respondent or view the termination of her employment as anything other than unfair dismissal and discriminatory.
Employment tribunal
The claimant brought successful claims for unfair dismissal and discrimination. The employment judge concluded that the CPO, probably in conjunction with Mr Beeley, had managed the claimant out of the business. While parts of her role were given to others, fundamentally Mr Beeley was to replace the claimant and do her job. Wanting to replace the claimant with an alternative employee is not a fair reason for dismissal. The respondent decided to dispense with the claimant while she was on maternity leave but waited for her to return to work before doing so. The role of Head of Technical should have been offered to the claimant as suitable alternative employment.
The employment tribunal expressed serious concerns that no evidence was led by the respondent from either the line manager or the CPO, who they described as the principal architects of the reorganisation and alleged redundancy situation. Although the CPO had left the respondent by the time of the hearing, the tribunal did not consider that an insurmountable obstacle to her giving evidence. Although the line manager had suffered some ill health the tribunal was clear that, in the absence of oral evidence, it expected that the redundancy process would have been heavily documented. However, very little evidence was placed before them. Nor was any contemporaneous documentation concerning the employment of Mr Beeley produced. The tribunal concluded that the redundancy was a sham.
The claimant was awarded £67,801.88 in compensation which included £20,000 for injury to feelings.
Comment
The employer's inability to provide contemporaneous records setting out the reasons for Mr Beeley's employment and to prove the genuine need for the restructure and the loss of the claimant's role meant they were unable to rebut the allegations made by the claimant. In this case that was because, according to the employment tribunal, the redundancy was a sham and the claimant was being managed out of the business after maternity leave. However, the case still serves to highlight the necessity of properly documenting processes that lead to dismissal. When a process is genuine, good risk management requires employers to keep sufficient records that document decision-making processes to enable them to defend allegations of unfairness or discrimination.
