Well, howdy there you lovely lot! Now that the team is growing, we don’t get to chat as much…..but this week I get to give you my little updates – both personal and in the world of employment law and HR.
Thie last few weeks for me have been enjoying the slowly emerging signs that spring may be on the way – the birds singing, the buds growing and the daffodils (my favourites) pushing their green heads through the grass/mud! Baring a disaster, it looks like we may have made it through the winter – and that is no mean feat, so well done.
I think the workplace echoes this. I think others are feeling the same because over the last few weeks I have been doing a heap of training; a few restructures as people reshape their teams; and lots and lots and lots of policy reviews so that my clients are ready for the busy busy couple of years that we are going to have in employment law. I do wonder why the Government do so dislike us mere employment lawyers – first COVID and furlough and now the Employment Rights Act 2025 – they like to keep us on our toes!
Employment Tribunals are busy ALL of the time (and yes this is set to increase with the new rights) but a recent case has really sparked my interest given what I have been working on recently, so here is your employment law treat this week…
This week’s blog will be on a case which focused on a topic which we talk about all the time – getting things down in writing. Write it down. Record it in an email. Get a pen, scribble on your forehead and take a picture(!) Those of you who know me, know that notes made at the time of a decision or a process are absolute pieces of pure gold if you get into the Tribunal process, so I bang on about this ALL the time!
The case I’m on about concerns Mrs Nichola Osborn and her dismissal from Mothercare Global Brant Ltd. Nichola took two periods of maternity leave during her employment with Mothercare with her second ending in May 2021. Whilst she was off, her role was covered by her husband as a consultant initially, but when a new Chief Product Officer was recruited (CPO), the CPO recruited a new consultant (Mr Beeley) who undertook some of Nichola’s duties and covered Nichola’s line manager’s role whilst he was also absent on long-term sick leave. Mothercare denied that Mr Beeley was recruited as maternity cover.
When Nichola was due to return to work following her maternity leave (which was extended by a period of annual leave) the office location had changed and she was not given a pass or a parking space. Nichola requested to meet the CPO and at that meeting and without prior warning, she was informed that her role was at risk of redundancy. Two redundancy meetings took place and Nichola was given the opportunity to apply for another role but was not offered a direct alternative, following which she submitted a grievance.
A third redundancy meeting took place which was also used to consider the grievance and during a fourth redundancy consultation meeting, Nichola took the view that there was no way she could look at the termination as anything other than unfair dismissal and discrimination and brought claims to the Tribunal for the same.
The Tribunal concluded that Mothercare had probably, via Mr Beeley, managed Nichola out of the business as Mr Beeley had essentially replaced Nichola. The Tribunal also took the view that the Head of Technical role, which Nichola applied for, should have been offered to her. In short, the reason for the Tribunal’s stance was that it is not lawful to dispense of an employee using an alternative employee and that Nichola should have been offered the suitable alternative role that was available at the time.
Anyway, back to the point of getting things in writing – the Tribunal expressed concerns around the lack of evidence from Mothercare. The Tribunal took the view that in the absence of oral evidence (key witnesses didn’t give witness statements), the redundancy process should have been heavily documented. In the end, very little evidence was placed in front of the Tribunal. This included the absence of evidence around the employment of Mr Beeley and the Tribunal ultimately concluded that it was a sham redundancy which in plain terms, is a process where an employer uses a redundancy as an excuse to get rid of an employee without following the proper process or having a genuine, lawful reason (you’d be surprised (or won’t be surprised) at how often this actually happens).
So what can we take away from all of this?
- Mothercare were heavily hamstrung because although they argued there was a genuine need for restructure, they could not produce the evidence to back it up.
- Proper documentation is key (have I said that already?) We have spoken about documentation in the context of a redundancy but documentation should be used for all employment practices, not just when a redundancy process or any formal process comes about. This includes (but not limited to) informal complaints, performance issues (before and during formal processes), absences etc. Basically, get into the habit of documenting it and then the fact you are doing it won’t be so weird for employees and they wont just expect it during formal processes.
- At Precept, we take the approach that if there is nothing to hide, you can put anything and everything on paper. Tribunals are suckers for proper, lawful processes and if you are following a proper and lawful process, you should have it all on paper as a guide for what you’ve done and why you’ve done it (and you should also have it on paper even if things go wrong, as much as you might not want to).
- Remember that all documents would be disclosable in the Tribunal, whether they assist you or not, and also if the employee makes a subject access request. This shouldn’t be a reason not to document things, but an incentive to do so professionally and accuracy. If you want a good story about disclosure, ask me about the head story and I will give you all the deets!
If you need help navigating through a redundancy process, or would like us to review your redundancy procedure, or need some assistance on anything employment related, or if you have any general queries or anything and everything in-between (strictly employment or HR related), speak to the team at Precept. You can contact us by calling us on 01332 866610 or emailing enquiries@precepthr.com.
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